Professional Conduct for Practitioners: Rules, Procedures, Representation, and Appearances, 5225-5230 [2010-2149]
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5225
Rules and Regulations
Federal Register
Vol. 75, No. 21
Tuesday, February 2, 2010
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. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF HOMELAND
SECURITY
Office of the Secretary
8 CFR Parts 1 and 292
RIN 1601–AA58
[Docket No. DHS–2009–0077]
Professional Conduct for Practitioners:
Rules, Procedures, Representation,
and Appearances
Office of the Secretary, DHS.
Interim rule with request for
comments.
AGENCY:
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ACTION:
SUMMARY: The Department of Homeland
Security (DHS) is amending its
regulations governing representation
and appearances by, and professional
conduct of, practitioners in immigration
practice before its components to:
Conform the grounds of discipline and
procedures regulations with those
promulgated by the Department of
Justice (DOJ); clarify who is authorized
to represent applicants and petitioners
in cases before DHS; remove duplicative
rules, procedures, and authority;
improve the clarity and uniformity of
the existing regulations; make technical
and procedural changes; and conform
terminology. This rule enhances the
integrity of the immigration
adjudication process by updating and
clarifying the regulation of professional
conduct of immigration practitioners
who practice before DHS.
DATES: Effective date: This interim rule
is effective March 4, 2010.
Comments: Written comments must
be submitted on or before March 4,
2010.
Comments may be
submitted, identified by DHS Docket
No. DHS–2009–0077, by the following
methods:
ADDRESSES:
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• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Rachel A. McCarthy,
Disciplinary Counsel, Office of the Chief
Counsel, U.S. Citizenship and
Immigration Services, Department of
Homeland Security, 70 Kimball Avenue,
Room 103, S. Burlington, VT 05403. To
ensure proper handling, please
reference DHS Docket No. DHS–2009–
0077 on correspondence. This mailing
address may also be used for paper,
disk, or CD–ROM submissions.
• Hand Delivery/Courier: Rachel A.
McCarthy, Disciplinary Counsel, Office
of the Chief Counsel, U.S. Citizenship
and Immigration Services, Department
of Homeland Security, 70 Kimball
Avenue, Room 103, S. Burlington, VT
05403.
FOR FURTHER INFORMATION CONTACT:
Rachel A. McCarthy, Disciplinary
Counsel, Office of the Chief Counsel,
U.S. Citizenship and Immigration
Services, Department of Homeland
Security, 70 Kimball Avenue, Room
103, S. Burlington, VT 05403, telephone
(802) 660–5043 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to
participate in this rulemaking by
submitting written data, views, or
arguments on all aspects of this interim
rule. DHS also invites comments that
relate to the economic, environmental,
or federalism affects that might result
from this rule. Comments that will
provide the most assistance to DHS in
developing these procedures will
reference a specific portion of the rule,
explain the reason for any
recommended change, and include data,
information, or authority that support
such recommended change.
Instructions: All submissions received
must include the agency name and DHS
Docket No. DHS–2009–0077 for this
rulemaking. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
II. Background
DHS regulates immigration
practitioners before U.S. Citizenship
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and Immigration Services (USCIS), U.S.
Immigration and Customs Enforcement
(ICE), and U.S. Customs and Border
Protection (CBP). DOJ, through the
Executive Office for Immigration
Review (EOIR), regulates immigration
practitioners before the Board of
Immigration Appeals (Board) and the
immigration courts. When DHS was
established in 2003, DOJ duplicated the
regulations on professional conduct for
practitioners in the new chapter V in 8
CFR.
DOJ updated its rules on Professional
Conduct for Practitioners—Rules of
Procedures, and Representation and
Appearances. 73 FR 44178 (July 30,
2008) (proposed rule); 73 FR 76914
(Dec. 18, 2008) (final rule). This interim
final rule conforms DHS regulations to
the DOJ regulations to maintain a
unified, consistent practice; clarifies
existing regulations; and eliminates
references to procedural matters that are
solely within the authority of DOJ.
In preparing this interim final rule,
DHS reviewed the DOJ proposed rule,
the four public comments submitted on
the DOJ proposed rule, and the DOJ
final rule. DHS is adopting this interim
final rule for the reasons stated in the
DOJ final rule and also considered its
experience in administering the
practitioner discipline process.
III. Changes Made by This Rule
This interim final rule amends DHS
regulations at 8 CFR parts 1 and 292 to:
• Clarify who is authorized to
represent applicants and petitioners
before USCIS, ICE, and CBP;
• Conform the rules governing the
authority of DHS to investigate
complaints;
• Conform disciplinary charges
against practitioners who appear before
DHS with the regulations promulgated
by DOJ;
• Improve the clarity and uniformity
of the existing rules; and
• Incorporate miscellaneous technical
and procedural changes necessitated by
the creation of DHS.
Definition of attorney. This rule
amends the definition of ‘‘attorney’’ at 8
CFR 1.1(f), to conform with DOJ’s
definition at 8 CFR 1001.1(f), by adding
the requirement that an attorney must
be eligible to practice law in the bar of
any State, possession, territory, or
Commonwealth of the United States, or
of the District of Columbia, in addition
to the other requirements for attorneys
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set forth in that regulation. State bar
rules uniformly require licensed
attorneys to maintain an active status in
order to practice law; however, there
has been some confusion as to the
applicability of that requirement in
determining eligibility to appear as a
representative before DHS.
Definition of practice. This rule
amends the definition of the term
‘‘practice’’ at 8 CFR 1.1(i) to reflect the
creation of DHS, the transfer of the
functions of the former Immigration and
Naturalization Service (INS), and to
update the definition to eliminate
references to representational activities
that occur before DOJ.
Definition of preparation. This rule
amends the definition of the term
‘‘preparation’’ at 8 CFR 1.1(k) to reflect
the creation of DHS and the transfer of
the functions of the former INS to DHS.
Definition of representation. This rule
amends the definition of the term
‘‘representation’’ at 8 CFR 1.1(m) to
reflect the creation of DHS, the transfer
of the functions of the former INS, and
to eliminate the reference to
representational activities that occur
before DOJ.
Representation of others. This rule
amends 8 CFR 292.1(a) to include a
reference to the limitations on
appearances in application and petition
proceedings in 8 CFR 103.2(a)(3) and
amends 8 CFR 292.1(a)(2) to clarify that
law students and law graduates as
defined under 8 CFR 1292.1(a)(4)
appearing before DHS must be students
or graduates of accredited law schools
in the United States. There have been
many instances of graduates of foreign
law schools attempting to represent
parties in DHS proceedings under this
provision and this clarification is
necessary to ensure that only eligible
individuals are permitted to appear as
representatives in immigration
proceedings. This rule also amends 8
CFR 292.1(a)(2) and (6) to reflect the
creation of DHS and the transfer of the
functions of the former INS.
Grounds of discipline. This rule
adopts the grounds of discipline in 8
CFR 1003.102 in their entirety and
applies those grounds of discipline to
practitioners before DHS. 8 CFR
292.3(b). Under this provision, DHS
may seek disciplinary sanctions against
a practitioner who falls within one or
more of the categories enumerated in 8
CFR 1003.102, as revised by DOJ. By
adopting all of the grounds of
discipline, this rule clarifies that 8 CFR
1003.102(k) and (l) apply as grounds for
discipline by DHS as well as EOIR. This
change will encourage practitioners to
timely appear for scheduled interviews
and other case-related meetings before
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DHS officials and to properly represent
their clients in DHS proceedings.
Immediate suspension. This rule
amends 8 CFR 292.3(c) to clarify that
DHS may petition to the Board for the
immediate suspension of an attorney
who, while a disciplinary investigation
or proceeding is pending, has resigned
from practice before the highest court of
any State, possession, territory, or
Commonwealth of the United States, or
the District of Columbia, or any Federal
Court, or who has been placed on an
interim suspension by such body
pending a final resolution of the
underlying disciplinary matter. This
change would conform the language in
DHS regulations to the DOJ rule.
Preliminary inquiry report. In this
rule, 8 CFR 292.3(c)(3), as revised, limits
the circumstances under which DHS
will prepare and serve a copy of a
preliminary inquiry report on the
practitioner with the Notice of Intent to
Discipline. In summary disciplinary
proceedings, DHS must file a certified
copy of the order, judgment and/or
record evidencing the underlying
criminal conviction or discipline with
the Board along with the Notice of
Intent to Discipline. Current regulations
require that DHS file a preliminary
inquiry report with all Notices of Intent
to Discipline. A preliminary inquiry
report summarizes the source of any
information uncovered in the
investigation of a disciplinary
complaint, including the administrative
record of immigration proceedings, a
record of state disciplinary proceedings,
or a record of criminal conviction. In
summary disciplinary proceedings
before the Board based upon a
conviction for a serious crime,
resignation while a disciplinary
investigation or proceeding is pending,
or disciplinary action by a court or other
disciplinary authority under 8 CFR
1003.103(b)(2), the preliminary inquiry
report summarizes records that are
included in the disciplinary proceeding
file as attachments to the Petition for
Immediate Suspension or the Notice of
Intent to Discipline. In all other cases,
DHS will issue a Notice of Intent to
Discipline to the practitioner containing
a statement of the charge(s) and a
preliminary inquiry report. The rule
also clarifies that DHS will promptly
initiate summary disciplinary
proceedings against any practitioner
upon receipt of certified copies of the
required documents.
Public notice of suspension. This rule
revises 8 CFR 292.3(h)(3) to clarify that
DHS may publicly post notices of
immediate suspension. This change is
necessary to ensure consistency with
DOJ regulations at 8 CFR 1003.106(c),
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which currently provide that notice of
disciplinary sanctions may be posted
publicly.
Filing of complaints of misconduct
occurring before DHS. This rule revises
the procedures in 8 CFR 292.3(d) for
filing complaints with allegations of
professional misconduct by
practitioners in matters before DHS. The
changes are necessary to reflect current
requirements resulting from the creation
of DHS and its component agencies.
Finally, this rule includes technical
changes such as removing references to
the ‘‘Office of the General Counsel of the
Service,’’ the ‘‘Immigration and
Naturalization Service,’’ or ‘‘INS,’’ and
other out-of-date terms to conform the
regulations with current DHS
terminology and structure. This rule
corrects technical errors, and
implements minor changes to improve
regulatory structure and readability in
the affected sections.
IV. Administrative Procedure Act
This rule relates to agency practice
and procedure and is not subject to the
requirements of advance notice and
comment under the Administrative
Procedure Act, 5 U.S.C. 553(b)(A). To
the extent that this interim final rule is
a rule of agency practice and procedure
under 5 U.S.C. 553(b)(A), DHS is
requesting public comments as a matter
of discretion.
Moreover, to the extent that a
provision of this rule could be
construed as not being a matter of
agency procedure, DHS has determined
that delaying the effect of this rule
during the period of public comment
would be impractical, unnecessary and
contrary to the public interest. If the
implementation of the provisions of this
rule were delayed pending public
comments, the Board of Immigration
Appeals and Adjudicating Officials
would be required to conduct
practitioner disciplinary proceedings
under one set of regulations for cases
initiated by EOIR disciplinary counsel
and under another for cases initiated by
DHS disciplinary counsel. As discussed
above, DOJ has promulgated a final rule
amending the relevant rules of
professional conduct for practitioners
and representation and appearances. 73
FR 76914 (Dec. 18, 2008). As a result of
the amendments made by the DOJ rule,
some provisions of the existing DHS
regulations are inconsistent with the
DOJ regulations on the same subject
matter for immigration practitioners in a
separate but often overlapping practice
area. Therefore, to avoid this result,
DHS has determined that this rule
should be implemented as soon as
possible to avoid disparate or
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inconsistent disciplinary standards.
This rule conforms to the DOJ rule. In
promulgating this final rule, DHS has
considered the record of proceedings
before DOJ, including the public
comments.
Accordingly, DHS has determined
that it would be impractical,
unnecessary and contrary to the public
interest to delay promulgation of this
rule pending review of public
comments. 5 U.S.C. 553(b)(B). This
interim final rule is effective 30 days
after publication in the Federal
Register. DHS invites comments and
will address those comments in the final
rule.
V. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601–612, as amended by
the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub.
L. 104–121), requires Federal agencies
to consider the potential impact of
regulations on small businesses, small
governmental jurisdictions, and small
organizations during the development of
their rules. When a rule is exempt from
APA notice and comment requirements,
however, the RFA does not require an
agency to prepare a regulatory flexibility
analysis. This rule makes changes for
which notice and comment are not
required under the APA; therefore DHS
is not required to prepare a regulatory
flexibility analysis for this rule.
VI. Unfunded Mandates Reform Act of
1995
This rule will not result in the
expenditure by State, local and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
in any one year, and it will not
significantly or uniquely affect small
governments. Therefore, no actions were
deemed necessary under the provisions
of the Unfunded Mandates Reform Act
of 1995.
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VII. Small Business Regulatory
Enforcement Fairness Act of 1996
This rule is not a major rule as
defined by the Small Business
Regulatory Enforcement Act of 1996. 5
U.S.C. 804(2). This rule will not result
in an annual effect on the economy of
$100 million or more; a major increase
in costs or prices; or significant adverse
effects on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
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VIII. Executive Order 12866
This rule is not a ‘‘significant
regulatory action’’ under Executive
Order 12866, section 3(f). This rule adds
no costs to the agency, imposes no
direct costs to the public, has no
budgetary impact, nor does it raise any
novel legal or policy issues. Thus, the
Office of Management and Budget
(OMB) has not reviewed this rule.
IX. Executive Order 13132
This rule will not have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
X. 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.
XI. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all
Departments are required to submit to
OMB, for review and approval, any
reporting requirements inherent in a
rule. This rule does not impose any
new, or modify an existing, reporting or
recordkeeping requirements under the
Paperwork Reduction Act.
List of Subjects
8 CFR Part 1
Administrative practice and
procedures, Immigration.
8 CFR Part 292
Administrative practice and
procedures, Immigration, Lawyer,
Reporting and recordkeeping
requirements.
■ Accordingly, chapter I of title 8 of the
Code of Federal Regulations is amended
as follows:
PART 1—DEFINITIONS
1. The authority citation for part 1 is
revised to read as follows:
■
Authority: 5 U.S.C. 301; 6 U.S.C. 112; 8
U.S.C. 1101 and 1103.
2. Section 1.1 is amended by revising
paragraphs (b), (f) (i), (k), and (m) to
read as follows:
■
§ 1.1
Definitions.
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*
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(b) The term Act or INA means the
Immigration and Nationality Act, as
amended.
*
*
*
*
*
(f) The term attorney means any
person who is eligible to practice law in,
and is a member in good standing of the
bar of, the highest court of any State,
possession, territory, or Commonwealth
of the United States, or of the District of
Columbia, and is not under any order
suspending, enjoining, restraining,
disbarring, or otherwise restricting him
or her in the practice of law.
*
*
*
*
*
(i) The term practice means the act or
acts of any person appearing in any
case, either in person or through the
preparation or filing of any brief or other
document, paper, application, or
petition on behalf of another person or
client before or with DHS.
*
*
*
*
*
(k) The term preparation, constituting
practice, means the study of the facts of
a case and the applicable laws, coupled
with the giving of advice and auxiliary
activities, including the incidental
preparation of papers, but does not
include the lawful functions of a notary
public or service consisting solely of
assistance in the completion of blank
spaces on printed DHS forms, by one
whose remuneration, if any, is nominal
and who does not hold himself or
herself out as qualified in legal matters
or in immigration and naturalization
procedure.
*
*
*
*
*
(m) The term representation before
DHS includes practice and preparation
as defined in paragraphs (i) and (k) of
this section.
*
*
*
*
*
PART 292—REPRESENTATION AND
APPEARANCES
3. The authority citation for part 292
is revised to read as follows:
■
Authority: 6 U.S.C. 112; 8 U.S.C. 1103,
1252b, 1362.
4. Section 292.1 is amended by:
a. Revising paragraph (a) introductory
text;
■ b. Revising paragraphs (a)(2)
introductory text and (a)(2)(iv);
■ c. Revising paragraph (a)(3)(iv); and
by
■ d. Revising paragraph (a)(6).
The revisions read as follows:
■
■
§ 292.1
Representation of others.
(a) A person entitled to representation
may be represented by any of the
following, subject to the limitations in 8
CFR 103.2(a)(3):
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*
*
*
*
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(2) Law students and law graduates
not yet admitted to the bar. A law
student who is enrolled in an accredited
U.S. law school, or a graduate of an
accredited U.S. law school who is not
yet admitted to the bar, provided that:
*
*
*
*
*
(iv) The law student’s or law
graduate’s appearance is permitted by
the DHS official before whom he or she
wishes to appear. The DHS official may
require that a law student be
accompanied by the supervising faculty
member, attorney, or accredited
representative.
(3) * * *
(iv) His or her appearance is
permitted by the DHS official before
whom he or she seeks to appear,
provided that such permission will not
be granted with respect to any
individual who regularly engages in
immigration and naturalization practice
or preparation, or holds himself or
herself out to the public as qualified to
do so.
*
*
*
*
*
(6) Attorneys outside the United
States. An attorney, other than one
described in 8 CFR 1.1(f), who is
licensed to practice law and is in good
standing in a court of general
jurisdiction of the country in which he
or she resides and who is engaged in
such practice, may represent parties in
matters before DHS, provided that he or
she represents persons only in matters
outside the geographical confines of the
United States as defined in section
101(a)(38) of the Act, and that the DHS
official before whom he or she wishes
to appear allows such representation as
a matter of discretion.
*
*
*
*
*
■ 4. Section 292.3 is revised to read as
follows:
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§ 292.3 Professional conduct for
practitioners—Rules and procedures.
(a) General provisions. (1) Authority
to sanction. An adjudicating official or
the Board of Immigration Appeals
(Board) may impose disciplinary
sanctions against any practitioner if it
finds it to be in the public interest to do
so. It will be in the public interest to
impose disciplinary sanctions against a
practitioner who is authorized to
practice before DHS when such person
has engaged in criminal, unethical, or
unprofessional conduct, or in frivolous
behavior, as set forth in 8 CFR 1003.102.
In accordance with the disciplinary
proceedings set forth in 8 CFR part
1003, an adjudicating official or the
Board may impose any of the following
disciplinary sanctions:
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(i) Expulsion which is permanent,
from practice before the Board and the
Immigration Courts, or DHS, or before
all three authorities;
(ii) Suspension, including immediate
suspension, from practice before the
Board and the Immigration Courts, or
DHS, or before all three authorities;
(iii) Public or private censure; or
(iv) Such other disciplinary sanctions
as the adjudicating official or the Board
deems appropriate.
(2) Persons subject to sanctions.
Persons subject to sanctions include any
practitioner. A practitioner is any
attorney as defined in 8 CFR 1.1(f) who
does not represent the federal
government, or any representative as
defined in 8 CFR 1.1(j). Attorneys
employed by DHS will be subject to
discipline pursuant to paragraph (i) of
this section.
(b) Grounds of discipline. It is deemed
to be in the public interest for the
adjudicating official or the Board to
impose disciplinary sanctions as
described in paragraph (a)(1) of this
section against any practitioner who
falls within one or more of the
categories enumerated in 8 CFR
1003.102. These categories do not
constitute the exclusive grounds for
which disciplinary sanctions may be
imposed in the public interest. Nothing
in this regulation should be read to
denigrate the practitioner’s duty to
represent zealously his or her client
within the bounds of the law.
(c) Immediate suspension and
summary disciplinary proceedings; duty
of practitioner to notify DHS of
conviction or discipline. (1) Immediate
suspension proceedings. Immediate
suspension proceedings will be
conducted in accordance with the
provisions set forth in 8 CFR 1003.103.
DHS shall file a petition with the Board
to suspend immediately from practice
before DHS any practitioner who has
been found guilty of, or pleaded guilty
or nolo contendere to, a serious crime,
as defined in 8 CFR 1003.102(h), any
practitioner who has been suspended or
disbarred by, or while a disciplinary
investigation or proceeding is pending
has resigned from, the highest court of
any State, possession, territory, or
Commonwealth of the United States, or
the District of Columbia, or any Federal
court; or who has been placed on an
interim suspension pending a final
resolution of the underlying
disciplinary matter.
(2) Copies and proof of service. A
copy of the petition will be forwarded
to EOIR, which may submit a written
request to the Board that entry of any
order immediately suspending a
practitioner before DHS also apply to
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the practitioner’s authority to practice
before the Board and the Immigration
Courts. Proof of service on the
practitioner of EOIR’s request to
broaden the scope of any immediate
suspension must be filed with the
Board.
(3) Summary disciplinary
proceedings. Summary disciplinary
proceedings will be conducted in
accordance with the provisions set forth
in 8 CFR 1003.103. DHS shall promptly
initiate summary disciplinary
proceedings against any practitioner
described in paragraph (c)(1) of this
section by the issuance of a Notice of
Intent to Discipline, upon receipt of a
certified copy of the order, judgment,
and/or record evidencing the underlying
criminal conviction, discipline, or
resignation, and accompanied by a
certified copy of such document. Delays
in initiation of summary disciplinary
proceedings under this section will not
impact an immediate suspension
imposed pursuant to paragraph (c)(1) of
this section. Any such proceeding will
not be concluded until all direct appeals
from an underlying criminal conviction
have been completed.
(4) Duty of practitioner to notify DHS
of conviction or discipline. Within 30
days of the issuance of the initial order,
even if an appeal of the conviction or
discipline is pending, of any conviction
or discipline for professional
misconduct entered on or after July 27,
2000, a practitioner must notify DHS
disciplinary counsel if the practitioner
has been: Found guilty of, or pleaded
guilty or nolo contendere to, a serious
crime, as defined in 8 CFR 1003.102(h);
suspended or disbarred by, or while a
disciplinary investigation or proceeding
is pending has resigned from, the
highest court of any State, possession,
territory, or Commonwealth of the
United States, or the District of
Columbia, or any Federal court; or
placed on an interim suspension
pending a final resolution of the
underlying disciplinary matter. Failure
to notify DHS disciplinary counsel as
required may result in immediate
suspension as set forth in paragraph
(c)(1) of this section.
(d) Filing of complaints of misconduct
occurring before DHS; preliminary
inquiry; resolutions; referral of
complaints. (1) Filing of complaints of
misconduct occurring before DHS.
Complaints of criminal, unethical, or
unprofessional conduct, or of frivolous
behavior by a practitioner before DHS
must be filed with the DHS disciplinary
counsel. Disciplinary complaints must
be submitted in writing and must state
in detail the information that supports
the basis for the complaint, including,
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but not limited to, the names and
addresses of the complainant and the
practitioner, the date(s) of the conduct
or behavior, the nature of the conduct or
behavior, the individuals involved, the
harm or damages sustained by the
complainant, and any other relevant
information. The DHS disciplinary
counsel will notify EOIR disciplinary
counsel of any disciplinary complaint
that pertains, in whole or in part, to a
matter before the Board or the
Immigration Courts.
(2) Preliminary inquiry. Upon receipt
of a disciplinary complaint or on its
own initiative, the DHS disciplinary
counsel will initiate a preliminary
inquiry. If a complaint is filed by a
client or former client, the complainant
thereby waives the attorney-client
privilege and any other applicable
privilege, to the extent necessary to
conduct a preliminary inquiry and any
subsequent proceeding based thereon. If
the DHS disciplinary counsel
determines that a complaint is without
merit, no further action will be taken.
The DHS disciplinary counsel may, in
his or her discretion, close a preliminary
inquiry if the complainant fails to
comply with reasonable requests for
assistance, information, or
documentation. The complainant and
the practitioner will be notified of any
such determination in writing.
(3) Resolutions reached prior to the
issuance of a Notice of Intent to
Discipline. The DHS disciplinary
counsel may, in his or her discretion,
issue warning letters and admonitions,
and may enter into agreements in lieu
of discipline, prior to the issuance of a
Notice of Intent to Discipline.
(e) Notice of Intent to Discipline. (1)
Issuance of Notice to Practitioner. If,
upon completion of the preliminary
inquiry, the DHS disciplinary counsel
determines that sufficient prima facie
evidence exists to warrant charging a
practitioner with professional
misconduct as set forth in 8 CFR
1003.102, it will file with the Board and
issue to the practitioner who was the
subject of the preliminary inquiry a
Notice of Intent to Discipline. Service of
this notice will be made upon the
practitioner by either certified mail to
his or her last known address, as
defined in paragraph (e)(2) of this
section, or by personal delivery. Such
notice shall contain a statement of the
charge(s), a copy of the preliminary
inquiry report, the proposed
disciplinary sanctions to be imposed,
the procedure for filing an answer or
requesting a hearing, and the mailing
address and telephone number of the
Board. In summary disciplinary
proceedings brought pursuant to
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14:43 Feb 01, 2010
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§ 292.3(c), a preliminary inquiry report
is not required to be filed with the
Notice of Intent to Discipline. Notice of
Intent to Discipline proceedings will be
conducted in accordance with the
provisions set forth in 8 CFR 1003.105
and 1003.106.
(2) Practitioner’s address. For the
purposes of this section, the last known
address of a practitioner is the
practitioner’s address as it appears in
DHS records if the practitioner is
actively representing an applicant or
petitioner before DHS on the date the
DHS disciplinary counsel issues the
Notice of Intent to Discipline. If the
practitioner does not have a matter
pending before DHS on the date of the
issuance of a Notice of Intent to
Discipline, then the last known address
for a practitioner will be as follows:
(i) Attorneys in the United States: The
attorney’s address that is on record with
a state jurisdiction that licensed the
attorney to practice law.
(ii) Accredited representatives: The
address of a recognized organization
with which the accredited
representative is affiliated.
(iii) Accredited officials: The address
of the embassy of the foreign
government that employs the accredited
official.
(iv) All other practitioners: The
address for the practitioner that appears
in DHS records for the application or
petition proceeding in which the DHS
official permitted the practitioner to
appear.
(3) Copy of Notice to EOIR; reciprocity
of disciplinary sanctions. A copy of the
Notice of Intent to Discipline shall be
forwarded to the EOIR disciplinary
counsel. Under Department of Justice
regulations in 8 CFR chapter V, the
EOIR disciplinary counsel may submit a
written request to the Board or the
adjudicating official requesting that any
discipline imposed upon a practitioner
which restricts his or her authority to
practice before DHS also apply to the
practitioner’s authority to practice
before the Board and the Immigration
Courts. Proof of service on the
practitioner of any request to broaden
the scope of the proposed discipline
must be filed with the Board or the
adjudicating official.
(4) Answer. The practitioner shall file
a written answer or a written request for
a hearing to the Notice of Intent to
Discipline in accordance with 8 CFR
1003.105. If a practitioner fails to file a
timely answer, proceedings will be
conducted according to 8 CFR 1003.105.
(f) Right to be heard and disposition;
decision; appeal; and reinstatement
after expulsion or suspension. Upon the
filing of an answer, the matter shall be
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5229
heard, decided, and appeals filed
according to the procedures set forth in
8 CFR 1003.106. Reinstatement
proceedings after expulsion or
suspension shall be conducted
according to the procedures set forth in
8 CFR 1003.107.
(g) Referral. In addition to, or in lieu
of, initiating disciplinary proceedings
against a practitioner, the DHS
disciplinary counsel may notify any
appropriate Federal and/or state
disciplinary or regulatory authority of
any complaint filed against a
practitioner. Any final administrative
decision imposing sanctions against a
practitioner (other than a private
censure) will be reported to any such
disciplinary or regulatory authority in
every jurisdiction where the disciplined
practitioner is admitted or otherwise
authorized to practice.
(h) Confidentiality. (1) Complaints
and preliminary inquiries. Except as
otherwise provided by law or regulation
or as authorized by this regulation,
information concerning complaints or
preliminary inquiries is confidential. A
practitioner whose conduct is the
subject of a complaint or preliminary
inquiry, however, may waive
confidentiality, except that the DHS
disciplinary counsel may decline to
permit a waiver of confidentiality if it is
determined that an ongoing preliminary
inquiry may be substantially prejudiced
by a public disclosure before the filing
of a Notice of Intent to Discipline.
(i) Disclosure of information for the
purpose of protecting the public. The
DHS disciplinary counsel may disclose
information concerning a complaint or
preliminary inquiry for the protection of
the public when the necessity for
disclosing information outweighs the
necessity for preserving confidentiality
in circumstances including, but not
limited to, the following:
(A) A practitioner has caused, or is
likely to cause, harm to client(s), the
public, or the administration of justice,
such that the public or specific
individuals should be advised of the
nature of the allegations. If disclosure of
information is made pursuant to this
paragraph, the DHS disciplinary counsel
may define the scope of information
disseminated and may limit the
disclosure of information to specified
individuals or entities;
(B) A practitioner has committed
criminal acts or is under investigation
by law enforcement authorities;
(C) A practitioner is under
investigation by a disciplinary or
regulatory authority, or has committed
acts or made omissions that may
reasonably result in investigation by
such an authority;
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(D) A practitioner is the subject of
multiple disciplinary complaints and
the DHS disciplinary counsel has
determined not to pursue all of the
complaints. The DHS disciplinary
counsel may inform complainants
whose allegations have not been
pursued of the status of any other
preliminary inquiries or the manner in
which any other complaint(s) against
the practitioner have been resolved.
(ii) Disclosure of information for the
purpose of conducting a preliminary
inquiry. The DHS disciplinary counsel
may, in his or her discretion, disclose
documents and information concerning
complaints and preliminary inquiries to
the following individuals or entities:
(A) To witnesses or potential
witnesses in conjunction with a
complaint or preliminary inquiry;
(B) To other governmental agencies
responsible for the enforcement of civil
or criminal laws;
(C) To agencies and other
jurisdictions responsible for conducting
disciplinary investigations or
proceedings;
(D) To the complainant or a lawful
designee; and
(E) To the practitioner who is the
subject of the complaint or preliminary
inquiry or the practitioner’s counsel of
record.
(2) Resolutions reached prior to the
issuance of a Notice of Intent to
Discipline. Resolutions, such as warning
letters, admonitions, and agreements in
lieu of discipline, reached prior to the
issuance of a Notice of Intent to
Discipline, will remain confidential.
However, such resolutions may become
part of the public record if the
practitioner becomes subject to a
subsequent Notice of Intent to
Discipline.
(3) Notices of Intent to Discipline and
action subsequent thereto. Notices of
Intent to Discipline and any action that
takes place subsequent to their issuance,
except for the imposition of private
censures, may be disclosed to the
public, except that private censures may
become part of the public record if
introduced as evidence of a prior record
of discipline in any subsequent
disciplinary proceeding. Settlement
agreements reached after the issuance of
a Notice of Intent to Discipline may be
disclosed to the public upon final
approval by the adjudicating official or
the Board. Disciplinary hearings are
open to the public, except as noted in
8 CFR 1003.106(a)(v).
(i) Discipline of government attorneys.
Complaints regarding the conduct or
behavior of DHS attorneys shall be
directed to the Office of the Inspector
General, DHS. If disciplinary action is
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14:43 Feb 01, 2010
Jkt 220001
warranted, it will be administered
pursuant to the Department’s attorney
discipline procedures.
DEPARTMENT OF TRANSPORTATION
5. Section 292.4 is amended by:
■ a. Revising paragraph (a); and
■ b. Revising the term ‘‘Service’’ to read
‘‘DHS’’ wherever that term appears in
paragraph (b).
The revisions read as follows:
14 CFR Part 97
§ 292.4
AGENCY: Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
■
Appearances.
(a) Authority to appear and act. An
appearance must be filed on the
appropriate form as prescribed by DHS
by the attorney or accredited
representative appearing in each case.
The form must be properly completed
and signed by the petitioner, applicant,
or respondent to authorize
representation in order for the
appearance to be recognized by DHS.
The appearance will be recognized by
the specific immigration component of
DHS in which it was filed until the
conclusion of the matter for which it
was entered. This does not change the
requirement that a new form must be
filed with an appeal filed with the
Administrative Appeals Office of
USCIS. Substitution may be permitted
upon the written withdrawal of the
attorney or accredited representative of
record or upon the filing of a new form
by a new attorney or accredited
representative. When an appearance is
made by a person acting in a
representative capacity, his or her
personal appearance or signature will
constitute a representation that under
the provisions of this chapter he or she
is authorized and qualified to appear as
a representative as provided in 8 CFR
103.2(a)(3) and 292.1. Further proof of
authority to act in a representative
capacity may be required.
*
*
*
*
*
§ 292.6
[Amended]
6. Section 292.6 is amended by
revising the term ‘‘part 3 of this chapter’’
to read ‘‘8 CFR part 1003’’.
■
Janet Napolitano,
Secretary.
[FR Doc. 2010–2149 Filed 2–1–10; 8:45 am]
BILLING CODE 9110–9B–P
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Federal Aviation Administration
[Docket No. 30707; Amdt. No. 3358]
Standard Instrument Approach
Procedures, and Takeoff Minimums
and Obstacle Departure Procedures;
Miscellaneous Amendments
SUMMARY: This establishes, amends,
suspends, or revokes Standard
Instrument Approach Procedures
(SIAPs) and associated Takeoff
Minimums and Obstacle Departure
Procedures for operations at certain
airports. These regulatory actions are
needed because of the adoption of new
or revised criteria, or because of changes
occurring in the National Airspace
System, such as the commissioning of
new navigational facilities, adding new
obstacles, or changing air traffic
requirements. These changes are
designed to provide safe and efficient
use of the navigable airspace and to
promote safe flight operations under
instrument flight rules at the affected
airports.
DATES: This rule is effective February 2,
2010. The compliance date for each
SIAP, associated Takeoff Minimums,
and ODP is specified in the amendatory
provisions.
The incorporation by reference of
certain publications listed in the
regulations is approved by the Director
of the Federal Register as of February 2,
2010.
ADDRESSES: Availability of matters
incorporated by reference in the
amendment is as follows:
For Examination—
1. FAA Rules Docket, FAA
Headquarters Building, 800
Independence Avenue, SW.,
Washington, DC 20591;
2. The FAA Regional Office of the
region in which the affected airport is
located;
3. The National Flight Procedures
Office, 6500 South MacArthur Blvd.,
Oklahoma City, OK 73169 or
4. The National Archives and Records
Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030,
or go to: https://www.archives.gov/
federal_register/
code_of_federal_regulations/
ibr_locations.html.
Availability—All SIAPs and Takeoff
Minimums and ODPs are available
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Agencies
[Federal Register Volume 75, Number 21 (Tuesday, February 2, 2010)]
[Rules and Regulations]
[Pages 5225-5230]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2149]
========================================================================
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.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 75, No. 21 / Tuesday, February 2, 2010 /
Rules and Regulations
[[Page 5225]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
8 CFR Parts 1 and 292
RIN 1601-AA58
[Docket No. DHS-2009-0077]
Professional Conduct for Practitioners: Rules, Procedures,
Representation, and Appearances
AGENCY: Office of the Secretary, DHS.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Department of Homeland Security (DHS) is amending its
regulations governing representation and appearances by, and
professional conduct of, practitioners in immigration practice before
its components to: Conform the grounds of discipline and procedures
regulations with those promulgated by the Department of Justice (DOJ);
clarify who is authorized to represent applicants and petitioners in
cases before DHS; remove duplicative rules, procedures, and authority;
improve the clarity and uniformity of the existing regulations; make
technical and procedural changes; and conform terminology. This rule
enhances the integrity of the immigration adjudication process by
updating and clarifying the regulation of professional conduct of
immigration practitioners who practice before DHS.
DATES: Effective date: This interim rule is effective March 4, 2010.
Comments: Written comments must be submitted on or before March 4,
2010.
ADDRESSES: Comments may be submitted, identified by DHS Docket No. DHS-
2009-0077, by the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Rachel A. McCarthy, Disciplinary Counsel, Office of
the Chief Counsel, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 70 Kimball Avenue, Room 103, S.
Burlington, VT 05403. To ensure proper handling, please reference DHS
Docket No. DHS-2009-0077 on correspondence. This mailing address may
also be used for paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Rachel A. McCarthy, Disciplinary
Counsel, Office of the Chief Counsel, U.S. Citizenship and Immigration
Services, Department of Homeland Security, 70 Kimball Avenue, Room 103,
S. Burlington, VT 05403.
FOR FURTHER INFORMATION CONTACT: Rachel A. McCarthy, Disciplinary
Counsel, Office of the Chief Counsel, U.S. Citizenship and Immigration
Services, Department of Homeland Security, 70 Kimball Avenue, Room 103,
S. Burlington, VT 05403, telephone (802) 660-5043 (not a toll-free
number).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
interim rule. DHS also invites comments that relate to the economic,
environmental, or federalism affects that might result from this rule.
Comments that will provide the most assistance to DHS in developing
these procedures will reference a specific portion of the rule, explain
the reason for any recommended change, and include data, information,
or authority that support such recommended change.
Instructions: All submissions received must include the agency name
and DHS Docket No. DHS-2009-0077 for this rulemaking. All comments
received will be posted without change to https://www.regulations.gov,
including any personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov.
II. Background
DHS regulates immigration practitioners before U.S. Citizenship and
Immigration Services (USCIS), U.S. Immigration and Customs Enforcement
(ICE), and U.S. Customs and Border Protection (CBP). DOJ, through the
Executive Office for Immigration Review (EOIR), regulates immigration
practitioners before the Board of Immigration Appeals (Board) and the
immigration courts. When DHS was established in 2003, DOJ duplicated
the regulations on professional conduct for practitioners in the new
chapter V in 8 CFR.
DOJ updated its rules on Professional Conduct for Practitioners--
Rules of Procedures, and Representation and Appearances. 73 FR 44178
(July 30, 2008) (proposed rule); 73 FR 76914 (Dec. 18, 2008) (final
rule). This interim final rule conforms DHS regulations to the DOJ
regulations to maintain a unified, consistent practice; clarifies
existing regulations; and eliminates references to procedural matters
that are solely within the authority of DOJ.
In preparing this interim final rule, DHS reviewed the DOJ proposed
rule, the four public comments submitted on the DOJ proposed rule, and
the DOJ final rule. DHS is adopting this interim final rule for the
reasons stated in the DOJ final rule and also considered its experience
in administering the practitioner discipline process.
III. Changes Made by This Rule
This interim final rule amends DHS regulations at 8 CFR parts 1 and
292 to:
Clarify who is authorized to represent applicants and
petitioners before USCIS, ICE, and CBP;
Conform the rules governing the authority of DHS to
investigate complaints;
Conform disciplinary charges against practitioners who
appear before DHS with the regulations promulgated by DOJ;
Improve the clarity and uniformity of the existing rules;
and
Incorporate miscellaneous technical and procedural changes
necessitated by the creation of DHS.
Definition of attorney. This rule amends the definition of
``attorney'' at 8 CFR 1.1(f), to conform with DOJ's definition at 8 CFR
1001.1(f), by adding the requirement that an attorney must be eligible
to practice law in the bar of any State, possession, territory, or
Commonwealth of the United States, or of the District of Columbia, in
addition to the other requirements for attorneys
[[Page 5226]]
set forth in that regulation. State bar rules uniformly require
licensed attorneys to maintain an active status in order to practice
law; however, there has been some confusion as to the applicability of
that requirement in determining eligibility to appear as a
representative before DHS.
Definition of practice. This rule amends the definition of the term
``practice'' at 8 CFR 1.1(i) to reflect the creation of DHS, the
transfer of the functions of the former Immigration and Naturalization
Service (INS), and to update the definition to eliminate references to
representational activities that occur before DOJ.
Definition of preparation. This rule amends the definition of the
term ``preparation'' at 8 CFR 1.1(k) to reflect the creation of DHS and
the transfer of the functions of the former INS to DHS.
Definition of representation. This rule amends the definition of
the term ``representation'' at 8 CFR 1.1(m) to reflect the creation of
DHS, the transfer of the functions of the former INS, and to eliminate
the reference to representational activities that occur before DOJ.
Representation of others. This rule amends 8 CFR 292.1(a) to
include a reference to the limitations on appearances in application
and petition proceedings in 8 CFR 103.2(a)(3) and amends 8 CFR
292.1(a)(2) to clarify that law students and law graduates as defined
under 8 CFR 1292.1(a)(4) appearing before DHS must be students or
graduates of accredited law schools in the United States. There have
been many instances of graduates of foreign law schools attempting to
represent parties in DHS proceedings under this provision and this
clarification is necessary to ensure that only eligible individuals are
permitted to appear as representatives in immigration proceedings. This
rule also amends 8 CFR 292.1(a)(2) and (6) to reflect the creation of
DHS and the transfer of the functions of the former INS.
Grounds of discipline. This rule adopts the grounds of discipline
in 8 CFR 1003.102 in their entirety and applies those grounds of
discipline to practitioners before DHS. 8 CFR 292.3(b). Under this
provision, DHS may seek disciplinary sanctions against a practitioner
who falls within one or more of the categories enumerated in 8 CFR
1003.102, as revised by DOJ. By adopting all of the grounds of
discipline, this rule clarifies that 8 CFR 1003.102(k) and (l) apply as
grounds for discipline by DHS as well as EOIR. This change will
encourage practitioners to timely appear for scheduled interviews and
other case-related meetings before DHS officials and to properly
represent their clients in DHS proceedings.
Immediate suspension. This rule amends 8 CFR 292.3(c) to clarify
that DHS may petition to the Board for the immediate suspension of an
attorney who, while a disciplinary investigation or proceeding is
pending, has resigned from practice before the highest court of any
State, possession, territory, or Commonwealth of the United States, or
the District of Columbia, or any Federal Court, or who has been placed
on an interim suspension by such body pending a final resolution of the
underlying disciplinary matter. This change would conform the language
in DHS regulations to the DOJ rule.
Preliminary inquiry report. In this rule, 8 CFR 292.3(c)(3), as
revised, limits the circumstances under which DHS will prepare and
serve a copy of a preliminary inquiry report on the practitioner with
the Notice of Intent to Discipline. In summary disciplinary
proceedings, DHS must file a certified copy of the order, judgment and/
or record evidencing the underlying criminal conviction or discipline
with the Board along with the Notice of Intent to Discipline. Current
regulations require that DHS file a preliminary inquiry report with all
Notices of Intent to Discipline. A preliminary inquiry report
summarizes the source of any information uncovered in the investigation
of a disciplinary complaint, including the administrative record of
immigration proceedings, a record of state disciplinary proceedings, or
a record of criminal conviction. In summary disciplinary proceedings
before the Board based upon a conviction for a serious crime,
resignation while a disciplinary investigation or proceeding is
pending, or disciplinary action by a court or other disciplinary
authority under 8 CFR 1003.103(b)(2), the preliminary inquiry report
summarizes records that are included in the disciplinary proceeding
file as attachments to the Petition for Immediate Suspension or the
Notice of Intent to Discipline. In all other cases, DHS will issue a
Notice of Intent to Discipline to the practitioner containing a
statement of the charge(s) and a preliminary inquiry report. The rule
also clarifies that DHS will promptly initiate summary disciplinary
proceedings against any practitioner upon receipt of certified copies
of the required documents.
Public notice of suspension. This rule revises 8 CFR 292.3(h)(3) to
clarify that DHS may publicly post notices of immediate suspension.
This change is necessary to ensure consistency with DOJ regulations at
8 CFR 1003.106(c), which currently provide that notice of disciplinary
sanctions may be posted publicly.
Filing of complaints of misconduct occurring before DHS. This rule
revises the procedures in 8 CFR 292.3(d) for filing complaints with
allegations of professional misconduct by practitioners in matters
before DHS. The changes are necessary to reflect current requirements
resulting from the creation of DHS and its component agencies.
Finally, this rule includes technical changes such as removing
references to the ``Office of the General Counsel of the Service,'' the
``Immigration and Naturalization Service,'' or ``INS,'' and other out-
of-date terms to conform the regulations with current DHS terminology
and structure. This rule corrects technical errors, and implements
minor changes to improve regulatory structure and readability in the
affected sections.
IV. Administrative Procedure Act
This rule relates to agency practice and procedure and is not
subject to the requirements of advance notice and comment under the
Administrative Procedure Act, 5 U.S.C. 553(b)(A). To the extent that
this interim final rule is a rule of agency practice and procedure
under 5 U.S.C. 553(b)(A), DHS is requesting public comments as a matter
of discretion.
Moreover, to the extent that a provision of this rule could be
construed as not being a matter of agency procedure, DHS has determined
that delaying the effect of this rule during the period of public
comment would be impractical, unnecessary and contrary to the public
interest. If the implementation of the provisions of this rule were
delayed pending public comments, the Board of Immigration Appeals and
Adjudicating Officials would be required to conduct practitioner
disciplinary proceedings under one set of regulations for cases
initiated by EOIR disciplinary counsel and under another for cases
initiated by DHS disciplinary counsel. As discussed above, DOJ has
promulgated a final rule amending the relevant rules of professional
conduct for practitioners and representation and appearances. 73 FR
76914 (Dec. 18, 2008). As a result of the amendments made by the DOJ
rule, some provisions of the existing DHS regulations are inconsistent
with the DOJ regulations on the same subject matter for immigration
practitioners in a separate but often overlapping practice area.
Therefore, to avoid this result, DHS has determined that this rule
should be implemented as soon as possible to avoid disparate or
[[Page 5227]]
inconsistent disciplinary standards. This rule conforms to the DOJ
rule. In promulgating this final rule, DHS has considered the record of
proceedings before DOJ, including the public comments.
Accordingly, DHS has determined that it would be impractical,
unnecessary and contrary to the public interest to delay promulgation
of this rule pending review of public comments. 5 U.S.C. 553(b)(B).
This interim final rule is effective 30 days after publication in the
Federal Register. DHS invites comments and will address those comments
in the final rule.
V. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121), requires Federal agencies to consider the
potential impact of regulations on small businesses, small governmental
jurisdictions, and small organizations during the development of their
rules. When a rule is exempt from APA notice and comment requirements,
however, the RFA does not require an agency to prepare a regulatory
flexibility analysis. This rule makes changes for which notice and
comment are not required under the APA; therefore DHS is not required
to prepare a regulatory flexibility analysis for this rule.
VI. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
VII. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by the Small Business
Regulatory Enforcement Act of 1996. 5 U.S.C. 804(2). This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
VIII. Executive Order 12866
This rule is not a ``significant regulatory action'' under
Executive Order 12866, section 3(f). This rule adds no costs to the
agency, imposes no direct costs to the public, has no budgetary impact,
nor does it raise any novel legal or policy issues. Thus, the Office of
Management and Budget (OMB) has not reviewed this rule.
IX. Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
X. 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.
XI. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to OMB, for review and approval, any
reporting requirements inherent in a rule. This rule does not impose
any new, or modify an existing, reporting or recordkeeping requirements
under the Paperwork Reduction Act.
List of Subjects
8 CFR Part 1
Administrative practice and procedures, Immigration.
8 CFR Part 292
Administrative practice and procedures, Immigration, Lawyer,
Reporting and recordkeeping requirements.
0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is
amended as follows:
PART 1--DEFINITIONS
0
1. The authority citation for part 1 is revised to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 112; 8 U.S.C. 1101 and 1103.
0
2. Section 1.1 is amended by revising paragraphs (b), (f) (i), (k), and
(m) to read as follows:
Sec. 1.1 Definitions.
* * * * *
(b) The term Act or INA means the Immigration and Nationality Act,
as amended.
* * * * *
(f) The term attorney means any person who is eligible to practice
law in, and is a member in good standing of the bar of, the highest
court of any State, possession, territory, or Commonwealth of the
United States, or of the District of Columbia, and is not under any
order suspending, enjoining, restraining, disbarring, or otherwise
restricting him or her in the practice of law.
* * * * *
(i) The term practice means the act or acts of any person appearing
in any case, either in person or through the preparation or filing of
any brief or other document, paper, application, or petition on behalf
of another person or client before or with DHS.
* * * * *
(k) The term preparation, constituting practice, means the study of
the facts of a case and the applicable laws, coupled with the giving of
advice and auxiliary activities, including the incidental preparation
of papers, but does not include the lawful functions of a notary public
or service consisting solely of assistance in the completion of blank
spaces on printed DHS forms, by one whose remuneration, if any, is
nominal and who does not hold himself or herself out as qualified in
legal matters or in immigration and naturalization procedure.
* * * * *
(m) The term representation before DHS includes practice and
preparation as defined in paragraphs (i) and (k) of this section.
* * * * *
PART 292--REPRESENTATION AND APPEARANCES
0
3. The authority citation for part 292 is revised to read as follows:
Authority: 6 U.S.C. 112; 8 U.S.C. 1103, 1252b, 1362.
0
4. Section 292.1 is amended by:
0
a. Revising paragraph (a) introductory text;
0
b. Revising paragraphs (a)(2) introductory text and (a)(2)(iv);
0
c. Revising paragraph (a)(3)(iv); and by
0
d. Revising paragraph (a)(6).
The revisions read as follows:
Sec. 292.1 Representation of others.
(a) A person entitled to representation may be represented by any
of the following, subject to the limitations in 8 CFR 103.2(a)(3):
* * * * *
[[Page 5228]]
(2) Law students and law graduates not yet admitted to the bar. A
law student who is enrolled in an accredited U.S. law school, or a
graduate of an accredited U.S. law school who is not yet admitted to
the bar, provided that:
* * * * *
(iv) The law student's or law graduate's appearance is permitted by
the DHS official before whom he or she wishes to appear. The DHS
official may require that a law student be accompanied by the
supervising faculty member, attorney, or accredited representative.
(3) * * *
(iv) His or her appearance is permitted by the DHS official before
whom he or she seeks to appear, provided that such permission will not
be granted with respect to any individual who regularly engages in
immigration and naturalization practice or preparation, or holds
himself or herself out to the public as qualified to do so.
* * * * *
(6) Attorneys outside the United States. An attorney, other than
one described in 8 CFR 1.1(f), who is licensed to practice law and is
in good standing in a court of general jurisdiction of the country in
which he or she resides and who is engaged in such practice, may
represent parties in matters before DHS, provided that he or she
represents persons only in matters outside the geographical confines of
the United States as defined in section 101(a)(38) of the Act, and that
the DHS official before whom he or she wishes to appear allows such
representation as a matter of discretion.
* * * * *
0
4. Section 292.3 is revised to read as follows:
Sec. 292.3 Professional conduct for practitioners--Rules and
procedures.
(a) General provisions. (1) Authority to sanction. An adjudicating
official or the Board of Immigration Appeals (Board) may impose
disciplinary sanctions against any practitioner if it finds it to be in
the public interest to do so. It will be in the public interest to
impose disciplinary sanctions against a practitioner who is authorized
to practice before DHS when such person has engaged in criminal,
unethical, or unprofessional conduct, or in frivolous behavior, as set
forth in 8 CFR 1003.102. In accordance with the disciplinary
proceedings set forth in 8 CFR part 1003, an adjudicating official or
the Board may impose any of the following disciplinary sanctions:
(i) Expulsion which is permanent, from practice before the Board
and the Immigration Courts, or DHS, or before all three authorities;
(ii) Suspension, including immediate suspension, from practice
before the Board and the Immigration Courts, or DHS, or before all
three authorities;
(iii) Public or private censure; or
(iv) Such other disciplinary sanctions as the adjudicating official
or the Board deems appropriate.
(2) Persons subject to sanctions. Persons subject to sanctions
include any practitioner. A practitioner is any attorney as defined in
8 CFR 1.1(f) who does not represent the federal government, or any
representative as defined in 8 CFR 1.1(j). Attorneys employed by DHS
will be subject to discipline pursuant to paragraph (i) of this
section.
(b) Grounds of discipline. It is deemed to be in the public
interest for the adjudicating official or the Board to impose
disciplinary sanctions as described in paragraph (a)(1) of this section
against any practitioner who falls within one or more of the categories
enumerated in 8 CFR 1003.102. These categories do not constitute the
exclusive grounds for which disciplinary sanctions may be imposed in
the public interest. Nothing in this regulation should be read to
denigrate the practitioner's duty to represent zealously his or her
client within the bounds of the law.
(c) Immediate suspension and summary disciplinary proceedings; duty
of practitioner to notify DHS of conviction or discipline. (1)
Immediate suspension proceedings. Immediate suspension proceedings will
be conducted in accordance with the provisions set forth in 8 CFR
1003.103. DHS shall file a petition with the Board to suspend
immediately from practice before DHS any practitioner who has been
found guilty of, or pleaded guilty or nolo contendere to, a serious
crime, as defined in 8 CFR 1003.102(h), any practitioner who has been
suspended or disbarred by, or while a disciplinary investigation or
proceeding is pending has resigned from, the highest court of any
State, possession, territory, or Commonwealth of the United States, or
the District of Columbia, or any Federal court; or who has been placed
on an interim suspension pending a final resolution of the underlying
disciplinary matter.
(2) Copies and proof of service. A copy of the petition will be
forwarded to EOIR, which may submit a written request to the Board that
entry of any order immediately suspending a practitioner before DHS
also apply to the practitioner's authority to practice before the Board
and the Immigration Courts. Proof of service on the practitioner of
EOIR's request to broaden the scope of any immediate suspension must be
filed with the Board.
(3) Summary disciplinary proceedings. Summary disciplinary
proceedings will be conducted in accordance with the provisions set
forth in 8 CFR 1003.103. DHS shall promptly initiate summary
disciplinary proceedings against any practitioner described in
paragraph (c)(1) of this section by the issuance of a Notice of Intent
to Discipline, upon receipt of a certified copy of the order, judgment,
and/or record evidencing the underlying criminal conviction,
discipline, or resignation, and accompanied by a certified copy of such
document. Delays in initiation of summary disciplinary proceedings
under this section will not impact an immediate suspension imposed
pursuant to paragraph (c)(1) of this section. Any such proceeding will
not be concluded until all direct appeals from an underlying criminal
conviction have been completed.
(4) Duty of practitioner to notify DHS of conviction or discipline.
Within 30 days of the issuance of the initial order, even if an appeal
of the conviction or discipline is pending, of any conviction or
discipline for professional misconduct entered on or after July 27,
2000, a practitioner must notify DHS disciplinary counsel if the
practitioner has been: Found guilty of, or pleaded guilty or nolo
contendere to, a serious crime, as defined in 8 CFR 1003.102(h);
suspended or disbarred by, or while a disciplinary investigation or
proceeding is pending has resigned from, the highest court of any
State, possession, territory, or Commonwealth of the United States, or
the District of Columbia, or any Federal court; or placed on an interim
suspension pending a final resolution of the underlying disciplinary
matter. Failure to notify DHS disciplinary counsel as required may
result in immediate suspension as set forth in paragraph (c)(1) of this
section.
(d) Filing of complaints of misconduct occurring before DHS;
preliminary inquiry; resolutions; referral of complaints. (1) Filing of
complaints of misconduct occurring before DHS. Complaints of criminal,
unethical, or unprofessional conduct, or of frivolous behavior by a
practitioner before DHS must be filed with the DHS disciplinary
counsel. Disciplinary complaints must be submitted in writing and must
state in detail the information that supports the basis for the
complaint, including,
[[Page 5229]]
but not limited to, the names and addresses of the complainant and the
practitioner, the date(s) of the conduct or behavior, the nature of the
conduct or behavior, the individuals involved, the harm or damages
sustained by the complainant, and any other relevant information. The
DHS disciplinary counsel will notify EOIR disciplinary counsel of any
disciplinary complaint that pertains, in whole or in part, to a matter
before the Board or the Immigration Courts.
(2) Preliminary inquiry. Upon receipt of a disciplinary complaint
or on its own initiative, the DHS disciplinary counsel will initiate a
preliminary inquiry. If a complaint is filed by a client or former
client, the complainant thereby waives the attorney-client privilege
and any other applicable privilege, to the extent necessary to conduct
a preliminary inquiry and any subsequent proceeding based thereon. If
the DHS disciplinary counsel determines that a complaint is without
merit, no further action will be taken. The DHS disciplinary counsel
may, in his or her discretion, close a preliminary inquiry if the
complainant fails to comply with reasonable requests for assistance,
information, or documentation. The complainant and the practitioner
will be notified of any such determination in writing.
(3) Resolutions reached prior to the issuance of a Notice of Intent
to Discipline. The DHS disciplinary counsel may, in his or her
discretion, issue warning letters and admonitions, and may enter into
agreements in lieu of discipline, prior to the issuance of a Notice of
Intent to Discipline.
(e) Notice of Intent to Discipline. (1) Issuance of Notice to
Practitioner. If, upon completion of the preliminary inquiry, the DHS
disciplinary counsel determines that sufficient prima facie evidence
exists to warrant charging a practitioner with professional misconduct
as set forth in 8 CFR 1003.102, it will file with the Board and issue
to the practitioner who was the subject of the preliminary inquiry a
Notice of Intent to Discipline. Service of this notice will be made
upon the practitioner by either certified mail to his or her last known
address, as defined in paragraph (e)(2) of this section, or by personal
delivery. Such notice shall contain a statement of the charge(s), a
copy of the preliminary inquiry report, the proposed disciplinary
sanctions to be imposed, the procedure for filing an answer or
requesting a hearing, and the mailing address and telephone number of
the Board. In summary disciplinary proceedings brought pursuant to
Sec. 292.3(c), a preliminary inquiry report is not required to be
filed with the Notice of Intent to Discipline. Notice of Intent to
Discipline proceedings will be conducted in accordance with the
provisions set forth in 8 CFR 1003.105 and 1003.106.
(2) Practitioner's address. For the purposes of this section, the
last known address of a practitioner is the practitioner's address as
it appears in DHS records if the practitioner is actively representing
an applicant or petitioner before DHS on the date the DHS disciplinary
counsel issues the Notice of Intent to Discipline. If the practitioner
does not have a matter pending before DHS on the date of the issuance
of a Notice of Intent to Discipline, then the last known address for a
practitioner will be as follows:
(i) Attorneys in the United States: The attorney's address that is
on record with a state jurisdiction that licensed the attorney to
practice law.
(ii) Accredited representatives: The address of a recognized
organization with which the accredited representative is affiliated.
(iii) Accredited officials: The address of the embassy of the
foreign government that employs the accredited official.
(iv) All other practitioners: The address for the practitioner that
appears in DHS records for the application or petition proceeding in
which the DHS official permitted the practitioner to appear.
(3) Copy of Notice to EOIR; reciprocity of disciplinary sanctions.
A copy of the Notice of Intent to Discipline shall be forwarded to the
EOIR disciplinary counsel. Under Department of Justice regulations in 8
CFR chapter V, the EOIR disciplinary counsel may submit a written
request to the Board or the adjudicating official requesting that any
discipline imposed upon a practitioner which restricts his or her
authority to practice before DHS also apply to the practitioner's
authority to practice before the Board and the Immigration Courts.
Proof of service on the practitioner of any request to broaden the
scope of the proposed discipline must be filed with the Board or the
adjudicating official.
(4) Answer. The practitioner shall file a written answer or a
written request for a hearing to the Notice of Intent to Discipline in
accordance with 8 CFR 1003.105. If a practitioner fails to file a
timely answer, proceedings will be conducted according to 8 CFR
1003.105.
(f) Right to be heard and disposition; decision; appeal; and
reinstatement after expulsion or suspension. Upon the filing of an
answer, the matter shall be heard, decided, and appeals filed according
to the procedures set forth in 8 CFR 1003.106. Reinstatement
proceedings after expulsion or suspension shall be conducted according
to the procedures set forth in 8 CFR 1003.107.
(g) Referral. In addition to, or in lieu of, initiating
disciplinary proceedings against a practitioner, the DHS disciplinary
counsel may notify any appropriate Federal and/or state disciplinary or
regulatory authority of any complaint filed against a practitioner. Any
final administrative decision imposing sanctions against a practitioner
(other than a private censure) will be reported to any such
disciplinary or regulatory authority in every jurisdiction where the
disciplined practitioner is admitted or otherwise authorized to
practice.
(h) Confidentiality. (1) Complaints and preliminary inquiries.
Except as otherwise provided by law or regulation or as authorized by
this regulation, information concerning complaints or preliminary
inquiries is confidential. A practitioner whose conduct is the subject
of a complaint or preliminary inquiry, however, may waive
confidentiality, except that the DHS disciplinary counsel may decline
to permit a waiver of confidentiality if it is determined that an
ongoing preliminary inquiry may be substantially prejudiced by a public
disclosure before the filing of a Notice of Intent to Discipline.
(i) Disclosure of information for the purpose of protecting the
public. The DHS disciplinary counsel may disclose information
concerning a complaint or preliminary inquiry for the protection of the
public when the necessity for disclosing information outweighs the
necessity for preserving confidentiality in circumstances including,
but not limited to, the following:
(A) A practitioner has caused, or is likely to cause, harm to
client(s), the public, or the administration of justice, such that the
public or specific individuals should be advised of the nature of the
allegations. If disclosure of information is made pursuant to this
paragraph, the DHS disciplinary counsel may define the scope of
information disseminated and may limit the disclosure of information to
specified individuals or entities;
(B) A practitioner has committed criminal acts or is under
investigation by law enforcement authorities;
(C) A practitioner is under investigation by a disciplinary or
regulatory authority, or has committed acts or made omissions that may
reasonably result in investigation by such an authority;
[[Page 5230]]
(D) A practitioner is the subject of multiple disciplinary
complaints and the DHS disciplinary counsel has determined not to
pursue all of the complaints. The DHS disciplinary counsel may inform
complainants whose allegations have not been pursued of the status of
any other preliminary inquiries or the manner in which any other
complaint(s) against the practitioner have been resolved.
(ii) Disclosure of information for the purpose of conducting a
preliminary inquiry. The DHS disciplinary counsel may, in his or her
discretion, disclose documents and information concerning complaints
and preliminary inquiries to the following individuals or entities:
(A) To witnesses or potential witnesses in conjunction with a
complaint or preliminary inquiry;
(B) To other governmental agencies responsible for the enforcement
of civil or criminal laws;
(C) To agencies and other jurisdictions responsible for conducting
disciplinary investigations or proceedings;
(D) To the complainant or a lawful designee; and
(E) To the practitioner who is the subject of the complaint or
preliminary inquiry or the practitioner's counsel of record.
(2) Resolutions reached prior to the issuance of a Notice of Intent
to Discipline. Resolutions, such as warning letters, admonitions, and
agreements in lieu of discipline, reached prior to the issuance of a
Notice of Intent to Discipline, will remain confidential. However, such
resolutions may become part of the public record if the practitioner
becomes subject to a subsequent Notice of Intent to Discipline.
(3) Notices of Intent to Discipline and action subsequent thereto.
Notices of Intent to Discipline and any action that takes place
subsequent to their issuance, except for the imposition of private
censures, may be disclosed to the public, except that private censures
may become part of the public record if introduced as evidence of a
prior record of discipline in any subsequent disciplinary proceeding.
Settlement agreements reached after the issuance of a Notice of Intent
to Discipline may be disclosed to the public upon final approval by the
adjudicating official or the Board. Disciplinary hearings are open to
the public, except as noted in 8 CFR 1003.106(a)(v).
(i) Discipline of government attorneys. Complaints regarding the
conduct or behavior of DHS attorneys shall be directed to the Office of
the Inspector General, DHS. If disciplinary action is warranted, it
will be administered pursuant to the Department's attorney discipline
procedures.
0
5. Section 292.4 is amended by:
0
a. Revising paragraph (a); and
0
b. Revising the term ``Service'' to read ``DHS'' wherever that term
appears in paragraph (b).
The revisions read as follows:
Sec. 292.4 Appearances.
(a) Authority to appear and act. An appearance must be filed on the
appropriate form as prescribed by DHS by the attorney or accredited
representative appearing in each case. The form must be properly
completed and signed by the petitioner, applicant, or respondent to
authorize representation in order for the appearance to be recognized
by DHS. The appearance will be recognized by the specific immigration
component of DHS in which it was filed until the conclusion of the
matter for which it was entered. This does not change the requirement
that a new form must be filed with an appeal filed with the
Administrative Appeals Office of USCIS. Substitution may be permitted
upon the written withdrawal of the attorney or accredited
representative of record or upon the filing of a new form by a new
attorney or accredited representative. When an appearance is made by a
person acting in a representative capacity, his or her personal
appearance or signature will constitute a representation that under the
provisions of this chapter he or she is authorized and qualified to
appear as a representative as provided in 8 CFR 103.2(a)(3) and 292.1.
Further proof of authority to act in a representative capacity may be
required.
* * * * *
Sec. 292.6 [Amended]
0
6. Section 292.6 is amended by revising the term ``part 3 of this
chapter'' to read ``8 CFR part 1003''.
Janet Napolitano,
Secretary.
[FR Doc. 2010-2149 Filed 2-1-10; 8:45 am]
BILLING CODE 9110-9B-P