Reorganization of Regulations on the Adjudication of Department of Homeland Security Practitioner Disciplinary Cases, 2011-2015 [2012-602]

Agencies

• Executive Office for Immigration Review
• Department of Justice

[Federal Register Volume 77, Number 9 (Friday, January 13, 2012)]
[Rules and Regulations]
[Pages 2011-2015]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-602]



========================================================================
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. 77, No. 9 / Friday, January 13, 2012 / Rules 
and Regulations

[[Page 2011]]



DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1003 and 1292

[EOIR Docket No. 174; A.G. Order No 3317-2012]
RIN 1125-AA66


Reorganization of Regulations on the Adjudication of Department 
of Homeland Security Practitioner Disciplinary Cases

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

ACTION: Interim rule with request for comments.

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

SUMMARY: The Department of Justice is amending its regulations 
governing the discipline of immigration practitioners as follows. 
First, the Department is removing unnecessary regulations and adding 
appropriate references to applicable regulations of the Department of 
Homeland Security (DHS). Second, the Department is making technical 
amendments to the Executive Office for Immigration Review's (EOIR) 
practitioner disciplinary regulations and clarifying the Department of 
Justice's final rule on Professional Conduct for Practitioners--Rules 
and Procedures, and Representation and Appearances, which became 
effective on January 20, 2009.

DATES: Effective date: This rule is effective January 13, 2012.
    Comment date: Comments on this rule must be received by February 
13, 2012.

ADDRESSES: Comments may be mailed to Robin M. Stutman, General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, Virginia 22041. To ensure proper handling, please 
reference EOIR Docket No. 174 on your correspondence. You may submit 
comments electronically or view an electronic version of this interim 
rule at www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Robin M. Stutman, General Counsel, 
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 
2600, Falls Church, Virginia 22041, telephone (703) 305-0470 (not a 
toll-free call).

SUPPLEMENTARY INFORMATION:

I. Posting of Public Comments

    Please note that all comments received are considered part of the 
public record and made available for public inspection online at 
www.regulations.gov. Such information includes personal identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personal identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You must also 
locate all the personal identifying information you do not want posted 
online in the first paragraph of your comment and identify what 
information you want redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You must also prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
www.regulations.gov.
    Personal identifying information identified and located as set 
forth above will be placed in the agency's public docket file, but not 
posted online. Confidential business information identified and located 
as set forth above will not be placed in the public docket file. If you 
wish to inspect the agency's public docket file in person, you must 
make an appointment with agency counsel. Please see the FOR FURTHER 
INFORMATION CONTACT paragraph above for agency counsel's contact 
information.

II. Regulatory Background

    The Attorney General created the Executive Office for Immigration 
Review in 1983 to combine the functions performed by special inquiry 
officers (now immigration judges) and the Board of Immigration Appeals 
(Board) into a single administrative agency within the Department of 
Justice (Department), separate from the former Immigration and 
Naturalization Service (INS). 48 FR 8038 (Feb. 25, 1983). This 
administrative structure separated the adjudication functions from the 
enforcement and service functions of INS, both for efficiency and to 
foster independent judgment in adjudication. Because both INS and EOIR 
were agencies within the Department at that time, the regulations 
affecting these agencies were included in the same chapter (chapter I) 
of title 8 of the Code of Federal Regulations. Most of the immigration 
regulations were organized by subject, which often resulted in 
provisions relating to INS and EOIR being intermingled in the same 
parts and sections, including the authority of INS and EOIR to 
discipline private immigration practitioners who appeared before either 
or both of those agencies.
    Prior to the creation of EOIR in 1983, the Department promulgated 
regulations at 8 CFR 292.3 that created a unified disciplinary system 
for attorneys and representatives who practiced before the Board and 
INS. 23 FR 2670, 2672-73 (April 23, 1958). Under the original system, 
INS officers investigated and prosecuted practitioners who allegedly 
committed misconduct before the Board or INS, and INS appointed special 
inquiry officers to hold disciplinary hearings. The Board reviewed 
special inquiry officer disciplinary decisions before they could become 
effective. After EOIR's creation, INS continued to be responsible for 
all investigative and prosecutorial functions related to allegations of 
practitioner misconduct occurring before EOIR and INS; however, EOIR's 
immigration judges, rather than INS officers, were tasked with holding 
disciplinary hearings. 52 FR 24980 (July 2, 1987).
    In 2000, the Department promulgated regulations that retained INS's 
authority to investigate and prosecute practitioner

[[Page 2012]]

misconduct occurring before INS; however, EOIR became responsible for 
investigating and prosecuting practitioners who committed misconduct 
while practicing before EOIR. 65 FR 39513 (June 27, 2000). The newly 
revised and expanded practitioner disciplinary regulations for EOIR 
were established at 8 CFR 3.101 to 3.109. At the same time, the 
Department amended 8 CFR 292.3 to make many of the new provisions in 
EOIR's regulations applicable to INS's disciplinary proceedings. Id. 
The two sets of rules established nearly identical grounds for 
discipline and a unified process for disciplinary proceedings. Finally, 
the two sets of rules provided for cross-discipline, allowing EOIR to 
request that any discipline imposed against a practitioner for 
misconduct before INS also be imposed with respect to that 
practitioner's ability to represent clients before EOIR, and vice 
versa. See 8 CFR 3.105(b) (EOIR) and 292.3(e)(2) (INS) (2001).
    The Homeland Security Act of 2002, as amended (HSA), transferred 
the functions of the former INS to the Department of Homeland Security. 
Public Law 107-296, tit., IV, subtits., D, E, F, 116 Stat. 2135, 2192 
(Nov. 25, 2002), as amended. The HSA, however, retained the functions 
of EOIR within the Department, under the direction of the Attorney 
General. 6 U.S.C. 521; 8 U.S.C. 1103(g); see generally Matter of D-J-, 
23 I&N Dec. 572 (A.G. 2003).
    The enactment of the HSA and its transfer of functions of the 
former INS to DHS required the creation of a new chapter for the 
regulations pertaining to EOIR, separate from the DHS regulations. 
Accordingly, the Attorney General published a rule transferring certain 
provisions that related to the jurisdiction and procedures of EOIR to a 
new chapter V of 8 CFR. 68 FR 9824 (Feb. 28, 2003). When the transfer 
of authority from the former INS to DHS took place on March 1, 2003, 
the time available before the transfer did not permit a thorough review 
of each of the provisions of the regulations where EOIR's and the 
former INS's responsibilities appeared in the same sections. As a 
result, the Department's rule duplicated in chapter V certain parts and 
sections of the regulations that related to the responsibilities of 
both the former INS and EOIR, respectively. The rule also made a number 
of technical amendments to chapters I and V to ensure that the 
authorities existing in the former INS and EOIR regulations prior to 
the transfer of functions to DHS remained in effect.
    As discussed above, before this transfer of authority, the 
Department had created a unified immigration practitioner disciplinary 
system in which EOIR adjudicated all disciplinary cases involving 
immigration practitioners, regardless of whether EOIR or INS initiated 
proceedings. It was for this reason and out of an abundance of caution 
that, in 2003, the Attorney General duplicated Sec.  292.3, found in 
chapter I of title 8, into a new Sec.  1292.3, located in chapter V. 68 
FR at 9845. At the same time, the EOIR disciplinary rules in 8 CFR part 
3, subpart G, beginning with Sec.  3.101, were transferred to part 
1003, subpart G. Id. at 9830-31. The Department intended to address 
over time the regulatory overlaps resulting from the 2003 rule by 
eliminating or substantially reducing any duplicative parts and 
sections that intermingled EOIR's and the former INS's authority. Id. 
at 9825.

III. Rationale for This Rule

    In 2008, the Department published proposed amendments to the 
regulations at 8 CFR parts 1001, 1003, and 1292. 73 FR 44178 (July 30, 
2008). The proposed changes included adding or amending several grounds 
for discipline and creating a new procedure by which the Board could 
issue final orders in cases brought under the summary disciplinary 
procedures. Id. at 44186-44188. However, this ``rule [did] not make any 
changes to the DHS regulations governing representation and appearances 
or professional conduct.'' Id. at 44179. Following receipt and review 
of public comments, the Department published an amended final rule that 
became effective on January 20, 2009. 73 FR 76914 (Dec. 18, 2008).\1\
---------------------------------------------------------------------------

    \1\ The final rule also included technical changes to 8 CFR 
1003.101-108, as well as an additional substantive change to 8 CFR 
1003.102, that were not included in the proposed rule. 73 FR 76918, 
76921-22, 76923-27.
---------------------------------------------------------------------------

    DHS has published an interim rule, 75 FR 5225 (Feb. 2, 2010), that 
modifies Sec.  292.3, in part to conform with the Department's revised 
disciplinary regulations at Sec. Sec.  1003.101 to 1003.108.
    Therefore, Sec.  1292.3 of the Department's regulations, which is 
no longer identical to Sec.  292.3 of the DHS regulations, should not 
remain in its current form because the Department's regulations 
concerning DHS's disciplinary cases should not be worded differently 
than DHS's regulations on that subject. Based on a review of Sec.  
1292.3 and EOIR's experience acquired since the transfer of the former 
INS's authority to DHS, it is apparent that most of the duplicative 
provisions in Sec.  1292.3 pertain to matters that are the 
responsibility of DHS, and, to some extent, they overlap with the 
provisions relating to disciplinary proceedings already codified in 8 
CFR 1003.103, 1003.105 and 1003.106. Further, duplication of the 
majority of Sec.  292.3 is not only unnecessary but potentially 
confusing. Accordingly, there is no reason for the Department to retain 
the current Sec.  1292.3 or reproduce the modified version of Sec.  
292.3 in the Department's regulations.
    For these reasons, the Department is removing Sec.  1292.3, and is 
replacing it with cross references to the applicable disciplinary 
provisions in 8 CFR part 1003, subpart G, and the corresponding DHS 
provision, 8 CFR 292.3.
    Although the Department is removing the existing text of Sec.  
1292.3, it is transferring certain aspects of Sec.  1292.3 by adding 
new text at 8 CFR 1003.103 and 1003.105, as described below. One 
critical aspect of Sec.  1292.3 that the Department will retain in part 
1003 is the regulatory authority to adjudicate DHS disciplinary cases. 
8 CFR 1292.3(a). Indeed, DHS's revised version of Sec.  292.3 provides 
that DHS disciplinary cases will be adjudicated by EOIR under EOIR's 
disciplinary regulations in 8 CFR part 1003. 75 FR at 5228-30. Further, 
the Department's regulations must reflect that EOIR may issue 
suspension and expulsion orders in DHS cases that also similarly 
restrict those practitioners from practice before EOIR. 8 CFR 
1292.3(a)(1)(i)-(ii); see also id. at 1292.3(c). Rather than retain 
these two aspects of Sec.  1292.3 for two brief provisions concerning 
practitioner disciplinary cases, the Department is transferring the 
relevant text to EOIR's disciplinary regulations in part 1003.
    The new language being added in part 1003 is not an exact duplicate 
of any provision now existing in Sec.  1292.3, but is based in part on 
language currently found in Sec.  1292.3(c) and (e). The new language 
states that DHS may file with the Board petitions for immediate 
suspension before DHS, and Notices of Intent to Discipline. The new 
language also provides for the EOIR disciplinary counsel, who 
investigates alleged misconduct and initiates formal discipinary 
proceedings, to request that EOIR make any disciplinary order issued in 
a DHS-initiated disciplinary case applicable to the practitioner's 
right to practice before EOIR. Finally, it also provides for DHS to 
request that EOIR make any disciplinary order in an EOIR-initiated 
disciplinary case applicable to the practitioner's right to practice 
before DHS.
    In addition, this rule revises some of the existing language of 
Sec.  1003.105(d)(2) to refer to ``counsel for the government'' rather 
than ``EOIR disciplinary counsel''

[[Page 2013]]

so as to make clear that this language applies whether the disciplinary 
proceedings are initiated by EOIR or by DHS. In the recent amendments 
to EOIR's practitioner disciplinary regulations, found at 73 FR 76914, 
the Department used the term ``counsel for the government'' to indicate 
either the EOIR or DHS attorney who is prosecuting a disciplinary case. 
This rule expands the use of the term ``counsel for the government'' 
rather than ``EOIR disciplinary counsel'' in Sec.  1003.105(d)(2), in 
light of the removal of the text of section 1292.3.

IV. Effect

    This rule does not result in a substantive change and does not 
alter the interpretation of any of the Department's regulations or 
affect the legal rights of any person. The changes reflected here are 
to bring the Department's regulations into conformity with DHS's 
regulations and to remove most of an unnecessary, duplicative 
regulation. The removal of entirely duplicative provisions in Sec.  
1292.3 does not alter the legal status quo.
    This rule does not affect 8 CFR 292.3, the corresponding rule for 
practice before DHS. The substantive and procedural regulations in 
Sec.  292.3 are within DHS's authority to promulgate and revise, 
whereas the regulatory provisions that go to the powers, procedures, 
and authority of EOIR's adjudicators and the EOIR disciplinary counsel 
are within the Attorney General's exclusive authority.

V. Technical Amendments and Clarifications to the Regulations

    This rule also includes two technical amendments and a 
clarification of EOIR's practitioner disciplinary regulations.
    In 8 CFR 1003.101(a)(1) and 1003.107(b), the terms ``expulsion'' 
and ``expelled'' are being changed to ``disbarment'' and ``disbarred,'' 
respectively. The reason for this change is to conform the terminology 
in the regulations to section 240(b)(6)(C) of the INA, 8 U.S.C. 
1229a(b)(6)(C), which indicates that the Attorney General may impose 
appropriate sanctions on attorneys, including disbarment. The terms 
``disbarment'' and ``disbarred'' will have the same meaning and effect 
that the terms ``expulsion'' and ``expelled'' presently have, and any 
practitioner who is presently under an order of expulsion will have the 
same rights and obligations as he or she had before the terminology was 
changed in the regulations.
    The Department is also revising 8 CFR 1003.106(a)(1). Section 
1003.106(a)(1) currently provides the Board with narrow authority to 
retain jurisdiction and issue a final order for cases in summary 
disciplinary proceedings if a practitioner's answer to a Notice of 
Intent to Discipline, see 8 CFR 1003.105, fails to make a prima facie 
showing that there is a material issue of fact in dispute. A 
practitioner is subject to summary disciplinary proceedings if, among 
other grounds, he or she is found guilty of or pleaded guilty or nolo 
contendre to a serious crime; is disbarred or suspended by the highest 
court of a state or a Federal court; or resigns from practicing before 
these tribunals pending a disciplinary investigation or proceeding. 8 
CFR 1003.103. Therefore, these practitioners have already received or 
had the opportunity to receive a trial or hearing in another forum, and 
a summary adjudication by the Board is appropriate. However, in a case 
involving an original charge of misconduct, i.e., misconduct arising 
from practice before the Department or DHS, the practitioner is not 
subject to summary disciplinary proceedings. A case involving an 
original charge of misconduct must be adjudicated by a finder of fact 
once the practitioner has filed a timely answer to the Notice of Intent 
to Discipline, regardless of whether the practitioner has made a prima 
facie showing that there is a material issue of fact in dispute. See 8 
CFR 1003.105(c) and 1003.106(a).
    This rule revises Sec.  1003.106(a)(1) to clarify the procedures in 
summary disciplinary cases in two respects. First, this rule clarifies 
that a case in summary disciplinary proceedings is referred to an 
adjudicator if the practitioner, in a timely answer to the Notice of 
Intent to Discipline, makes a prima facie showing that there is a 
material issue of fact in dispute, regardless of whether the 
practitioner also requests a hearing. Second, this rule inserts 
additional sentences at the end of Sec.  1003.106(a)(1) clarifying that 
the Board will refer to the Chief Immigration Judge cases not subject 
to the summary disciplinary proceeding provisions, whenever the 
practitioner files a timely answer. These revisions do not 
substantively change the legal rights of practitioners and are only 
intended to ensure that practitioners who have original charges of 
misconduct filed against them, and file an answer in response to those 
charges, receive the process provided under the procedures in Sec.  
1003.106 before EOIR issues a final order.
    This rule also adds a new Sec.  1003.106(a)(2) making clear that 
the adjudication provisions of Sec.  1003.106 do not apply if the Board 
chooses not to refer disciplinary proceedings to the Chief Immigration 
Judge pursuant to Sec.  1003.106(a)(1), or if a hearing is precluded as 
provided in Sec.  1003.105(d). This rule also amends the first sentence 
of Sec.  1003.106(a)(2)(ii) to delete an unnecessary reference to 8 CFR 
1003.105(c)(3).
    In 8 CFR 1003.107(a), the words ``the Service'' are being changed 
to ``DHS.'' In the recent amendments to EOIR's disciplinary 
regulations, the Department sought to change all references to the 
former INS to DHS. 73 FR at 76921-22. The previous final rule failed to 
make this change to Sec.  1003.107(a).

Regulatory Requirements

Administrative Procedure Act

    The Department of Justice finds that good cause exists for adopting 
this rule as an interim rule with provision for post-promulgation 
public comment under the Administrative Procedure Act (5 U.S.C. 553) 
because this rule only makes technical amendments to the organization, 
procedures, and practices of the Department of Justice to improve the 
organization of the Department's regulations and to reflect the 
transfer of functions made by the Homeland Security Act of 2002. 
Similarly, because this interim rule merely makes changes in internal 
delegations and procedures, and is a recodification of existing 
regulations, this interim rule is not subject to the effective date 
limitation of 5 U.S.C. 553(d).

Regulatory Flexibility Act

    Because no notice of proposed rule-making is required for this rule 
under the Administrative Procedure Act (5 U.S.C. 553), the provisions 
of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.

Paperwork Reduction Act

    The provisions 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, do not apply to this interim rule because there are no new 
or revised recordkeeping or reporting requirements.

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

[[Page 2014]]

of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. 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.

Congressional Review Act

    This action pertains to agency organization, procedures, and 
practices and does not substantially affect the rights or obligations 
of non-agency parties and, accordingly, is not a ``rule'' as that term 
is used by the Congressional Review Act (Subtitle E of the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). 
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Executive Order 12866

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this rule is not a ``significant 
regulatory action'' under section 3(f) of Executive Order 12866, 
Regulatory Planning and Review, and accordingly this rule has not been 
reviewed by the Office of Management and Budget (OMB).

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, the Department of Justice has determined that 
this rule does not have sufficient federalism implications to warrant a 
federalism summary impact statement.

Executive Order 12988

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

List of Subjects

8 CFR Part 1003

    Administrative practice and procedures, Immigration, Legal 
services, Organization and functions (Government agencies), Reporting 
and recordkeeping requirements.

8 CFR Part 1292

    Administrative practice and procedures, Immigration, Lawyers, 
Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, parts 1003 and 1292 of 
title 8 of the Code of Federal Regulations are amended as follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

    Authority:  5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 
1254a, 1255, 1324d, 1330, 1361, 1362; 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. 1527-29, 1531-32; section 
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.

Subpart G--Professional Conduct for Practitioners--Rules And 
Procedures


Sec.  1003.101  [Amended]

0
2. Amend Sec.  1003.101 by removing from paragraph (a)(1) the word 
``Expulsion'' and adding in its place the word ``Disbarment''.

0
3. Amend Sec.  1003.103 by:
0
a. Removing the second and third sentences in paragraph (a)(1);
0
b. Redesignating paragraph (a)(2) as paragraph (a)(4);
0
c. Adding new paragraphs (a)(2) and (3);
0
d. Removing from the first sentence of newly redesignated paragraph 
(a)(4) the words ``by the EOIR disciplinary counsel,'' and adding in 
their place the words ``pursuant to Sec. Sec.  1003.103(a)(1) or 
1003.103(a)(2)''; and by
0
e. Revising the first sentence of paragraph (b).
    The additions and revision read as follows:


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

    (a) * * *
    (2) DHS petition. DHS may file a petition with the Board to suspend 
immediately from practice before DHS any practitioner described in 
paragraph (a)(1) of this section. See 8 CFR 292.3(c).
    (3) Copy of petition. A copy of a petition filed by the EOIR 
disciplinary counsel shall be forwarded to DHS, which may submit a 
written request to the Board that entry of any order immediately 
suspending a practitioner before the Board or the Immigration Courts 
also apply to the practitioner's authority to practice before DHS. A 
copy of a petition filed by DHS shall be forwarded to the EOIR 
disciplinary counsel, who 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 Immigration Courts. Proof of service on the practitioner of 
any request to broaden the scope of an immediate suspension or proposed 
discipline must be filed with the Board or the adjudicating official.
* * * * *
    (b) Summary disciplinary proceedings. The EOIR disciplinary counsel 
(or DHS pursuant to 8 CFR 292.3(c)(3)) shall promptly initiate summary 
disciplinary proceedings against any practitioner described in 
paragraph (a) of this section by the issuance of a Notice of Intent to 
Discipline, upon receipt of a certified copy of the order, judgment, or 
record evidencing the underlying criminal conviction, discipline, or 
resignation, and accompanied by a certified copy of such document. * * 
*
* * * * *

0
4. Amend Sec.  1003.105 by:
0
a. Adding paragraph (a)(3);
0
b. Revising paragraph (b); and by
0
c. Removing from paragraph (d)(2) the words ``EOIR disciplinary 
counsel'' from the last sentence and adding in their place ``counsel 
for the government''.
    The addition and revision read as follows:


Sec.  1003.105  Notice of Intent to Discipline.

    (a) * * *
    (3) DHS Issuance of Notice to practitioner. DHS may file a Notice 
of Intent to Discipline with the Board in accordance with 8 CFR 
292.3(e).
    (b) Copy of notice; reciprocity of discipline. A copy of the Notice 
of Intent to Discipline filed by the EOIR disciplinary counsel shall be 
forwarded to DHS, which 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 
the Board and the Immigration Courts also apply to the practitioner's 
authority to practice before DHS. A copy

[[Page 2015]]

of the Notice of Intent to Discipline filed by DHS shall be forwarded 
to the EOIR disciplinary counsel, who may submit a written request to 
the Board or the adjudicating official requesting that any discipline 
imposed upon a practitioner that 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 adjudicating official.
* * * * *

0
5. Amend Sec.  1003.106 by:
0
a. Revising paragraph (a)(1);
0
b. Adding paragraph (a)(2) introductory text; and by
0
c. Removing from the first sentence in paragraph (a)(2)(ii) the words 
``Except as provided in Sec. Sec.  1003.105(c)(3), upon'' and adding in 
their place ``Upon''.
    The addition and revision read as follows:


Sec.  1003.106  Right to be heard and disposition.

    (a) * * *
    (1) Summary disciplinary proceedings. A practitioner who is subject 
to summary disciplinary proceedings pursuant to Sec.  1003.103(b) must 
make a prima facie showing to the Board in his or her answer that there 
is a material issue of fact in dispute with regard to the basis for 
summary disciplinary proceedings, or with one or more of the exceptions 
set forth in Sec.  1003.103(b)(2)(i) through (iii). If the practitioner 
files a timely answer and the Board determines that there is a material 
issue of fact in dispute with regard to the basis for summary 
disciplinary proceedings, or with one or more of the exceptions set 
forth in Sec.  1003.103(b)(2)(i) through (iii), then the Board shall 
refer the case to the Chief Immigration Judge for the appointment of an 
adjudicating official. If the practitioner fails to make such a prima 
facie showing, the Board shall retain jurisdiction over the case and 
issue a final order. Notwithstanding the foregoing, the Board shall 
refer any case to the Chief Immigration Judge for the appointment of an 
adjudicating official in which the practitioner has filed a timely 
answer and the case involves a charge or charges that cannot be 
adjudicated under the summary disciplinary proceedings provisions in 
Sec.  1003.103(b). The Board shall refer such a case regardless of 
whether the practitioner has requested a hearing.
    (2) Procedure. The procedures of paragraphs (b) through (d) of this 
section apply to cases in which the practitioner files a timely answer 
to the Notice of Intent to Discipline, with the exception of cases in 
which the Board issues a final order pursuant to Sec.  1003.105(d)(2) 
or Sec.  1003.106(a)(1).
* * * * *


Sec.  1003.107  [Amended]

0
6. Amend Sec.  1003.107 by:
0
a. Removing from the section heading the word ``expulsion'' and adding 
in its place the word ``disbarment''.
0
b. Removing from paragraph (a) the words ``the Service'' and adding in 
their place the term ``DHS'';
0
c. Removing from the first sentence of paragraph (b) introductory text 
the word ``expelled'' and adding in its place the word ``disbarred'';
0
d. Removing from the third sentence of paragraph (b) introductory text 
the word ``expelled'' and adding in its place the word ``disbarred'';
0
e. Removing from the second sentence of paragraph (b)(1) the word 
``expelled'' and adding in its place the word ``disbarred''; and by
0
f. Removing from the second sentence of paragraph (b)(1) the word 
``expulsion'' and adding in its place the word ``disbarment''.

PART 1292--REPRESENTATION AND APPEARANCES

0
7. The authority citation for part 1292 continues to read as follows:

    Authority:  8 U.S.C. 1103, 1252b, 1362.


0
8. Section 1292.3 is revised to read as follows:


Sec.  1292.3  Professional conduct for practitioners--Rules and 
procedures.

    Attorneys and representatives practicing before the Board, the 
Immigration Courts, or DHS are subject to the imposition of 
disciplinary sanctions as provided in 8 CFR part 1003, subpart G, Sec.  
1003.101 et seq. See also 8 CFR 292.3 (pertaining to practice before 
DHS).

    Dated: January 3, 2012.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2012-602 Filed 1-12-12; 8:45 am]
BILLING CODE 4410-30-P