List of Pro Bono Legal Service Providers for Aliens in Immigration Proceedings, 55662-55673 [2014-21686]
Download as PDF
<![CDATA[
55662
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules
Entry of Appearance(s) has previously
been filed with the DHS for
appearance(s) before the DHS.
*
*
*
*
*
Dated: July 29, 2014.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2014–21679 Filed 9–16–14; 8:45 am]
BILLING CODE 4410–30–P
DEPARTMENT OF JUSTICE
Executive Office for Immigration
Review
8 CFR Parts 1003, 1240, and 1241
[EOIR Docket No. 164P; AG Order No. 3463–
2014]
RIN 1125–AA62
List of Pro Bono Legal Service
Providers for Aliens in Immigration
Proceedings
Executive Office for
Immigration Review, Justice.
ACTION: Notice of proposed rulemaking.
AGENCY:
This rule proposes to amend
8 CFR parts 1003, 1240, and 1241 by
changing the name of the ‘‘List of Free
Legal Services Providers’’ to the ‘‘List of
Pro Bono Legal Service Providers.’’ The
rule also would enhance the eligibility
requirements for organizations, private
attorneys, and referral services to be
included on the List of Pro Bono Legal
Service Providers (List).
DATES: Electronic comments must be
submitted and written comments must
be postmarked on or before November
17, 2014. The electronic Federal Docket
Management System at
www.regulations.gov will accept
electronic comments submitted prior to
midnight Eastern Time at the end of that
day.
ADDRESSES: Please submit written
comments to Jeff Rosenblum, General
Counsel, Executive Office for
Immigration Review, 5107 Leesburg
Pike, Suite 2600, Falls Church, Virginia,
20530. To ensure proper handling,
please reference RIN 1125–AA62 or
EOIR docket number 164P on your
correspondence. You may view an
electronic version and provide
comments via the Internet by using the
www.regulations.gov comment form for
this regulation. When submitting
comments electronically, you must
include RIN 1125–AA62 in the subject
box. See Section I of the SUPPLEMENTARY
INFORMATION section for more
information.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
SUMMARY:
VerDate Sep<11>2014
18:21 Sep 16, 2014
Jkt 232001
Jeff
Rosenblum, General Counsel, Executive
Office for Immigration Review, 5107
Leesburg Pike, Suite 2600, Falls Church,
Virginia 20530, telephone (703) 305–
0470 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Public Participation—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 by
appointment, please see the FOR
FURTHER INFORMATION CONTACT section.
Interested persons are invited to
participate in this rulemaking by
submitting written data, views, or
arguments on all aspects of this rule.
Comments that will provide the most
assistance to the Department of Justice
will reference a specific portion of the
rule, explain the reason for any
recommended change, and include data,
information, or authority that support
the recommended change.
PO 00000
Frm 00004
Fmt 4702
Sfmt 4702
For access to the electronic docket to
read background documents or
comments received, go to
www.regulations.gov. Submitted
comments may also be inspected at the
Executive Office for Immigration
Review, 5107 Leesburg Pike, Suite 2600,
Falls Church, Virginia 20530. To make
an appointment, please contact EOIR at
(703) 305–0470 (not a toll-free call).
II. Explanation of Proposed Changes
Aliens who are placed in removal
proceedings pursuant to section 240 of
the Immigration and Nationality Act
(Act or INA), or who seek asylum under
section 208 of the Act (whether or not
in removal proceedings), must be
provided with a list of persons who
have indicated their availability to
represent aliens on a pro bono basis. See
INA 208(d)(4)(B) (relating to asylum
proceedings), and INA 239(a)(1)(E),
(b)(2) (relating to removal proceedings).
In order to meet this statutory
obligation, the Executive Office for
Immigration Review (EOIR) publishes
the Free Legal Services Providers List
(List).1 The regulations governing the
List were promulgated on February 28,
1997, at 62 FR 9071, and are found at
8 CFR 1003.61–1003.65. The List is
organized by immigration court
location; 2 for each location, the List
provides the names of private attorneys
and non-profit organizations aliens in
proceedings may contact for free legal
services. At each location, aliens are
given the portion of the List with the
providers for that location. The
complete List is posted on the EOIR
Web site.3 See www.usdoj.gov/eoir/
probono/states.htm.
The List is central to EOIR’s efforts to
improve the amount and quality of
representation before its adjudicators,
and it is an essential tool to inform
aliens in proceedings before EOIR of
available pro bono legal services.
However, as explained further below,
1 EOIR, a component of the Department of Justice,
includes the immigration judges and the Board of
Immigration Appeals. The immigration judges, who
are appointed by the Attorney General, conduct
removal proceedings and other immigration
proceedings, resolving questions such as whether
an alien is inadmissible to or deportable from the
United States, and whether he or she qualifies for
relief from removal.
2 The term ‘‘immigration court location,’’ as used
in this proposed rule, refers both to the immigration
courts and to facilities where hearings may be
conducted, but where no EOIR personnel have a
permanent duty station.
3 In addition, the Department of Homeland
Security (DHS) provides a modified version of
EOIR’s List to asylum applicants before that agency,
and DHS provides EOIR’s List to aliens in certain
other instances as well. As explained in more detail
below, this proposed rule does not limit DHS’s
ability to provide aliens with EOIR’s List or with
DHS’s modified versions of the List.
E:\FR\FM\17SEP1.SGM
17SEP1
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules
concerns have been expressed to EOIR
by government sources and the public
about problems with the List, and EOIR
believes it is important to improve the
functioning of the List. Therefore, the
Department of Justice (Department) is
proposing to amend the regulations
governing the List, as described further
below.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
A. ‘‘Pro Bono Legal Service Providers’’
As the List is intended to provide
aliens access to pro bono representation,
this proposed rule replaces the term
‘‘free legal service providers’’ with ‘‘pro
bono legal service providers.’’ Replacing
the word ‘‘free’’ with the term ‘‘pro
bono’’ reflects the relevant statutory
language (see INA 208(d)(4)(B),
239(a)(1)(E), 239(b)(2)), describes more
accurately the nature of the services
provided, and will improve the integrity
of the List. Further, removing the word
‘‘free’’ will clarify that entities and
private attorneys on the List are not
necessarily available to work free of
charge for every alien regardless of the
alien’s financial means or the type of
legal work involved. Rather, use of the
term ‘‘pro bono’’ indicates that such
services are for the public good, e.g., to
help ensure qualified representation for
those indigent aliens who do not have
sufficient means to hire a private
attorney.
B. Definition of ‘‘Pro Bono’’
This proposed rule also sets forth a
definition of the term ‘‘pro bono’’ to
ensure that entities or private attorneys
that want to be included on the List
understand the kind of services
expected from them if they are included
on the List. The proposed rule defines
‘‘pro bono legal services’’ at
§ 1003.61(a)(2) as ‘‘those
uncompensated legal services
performed for indigent aliens or the
public good without any expectation of
either direct or indirect remuneration,
including referral fees (other than filing
fees or photocopying and mailing
expenses), although a representative
may be regularly compensated by the
firm, organization, or pro bono referral
service with which he or she is
associated.’’ This definition not only
reflects the spirit of pro bono
representation, but is also consistent
with the common law understanding of
the terms pro bono and pro bono
publico. See, e.g., Black’s Law
Dictionary (9th ed. 2009).
Use of the term pro bono indicates
that work performed should be for the
good of the public from the outset and
a commitment to continue such
representation throughout the duration
of the administrative proceeding before
VerDate Sep<11>2014
18:21 Sep 16, 2014
Jkt 232001
an immigration judge. It is inappropriate
for legal service providers to
subsequently count as ‘‘pro bono’’ those
services provided to paying clients who
fall delinquent in paying attorney fees.
In addition, EOIR recognizes that some
organizations charge reduced or
nominal fees in an attempt to provide
services to aliens who cannot afford
private attorneys but have a modest
ability to pay. However, services
provided for a reduced or nominal fee
do not constitute ‘‘pro bono’’ services
under the proposed rule. Although
services provided for reduced or
nominal fees are not ‘‘pro bono’’
services, organizations that charge such
fees to some of their clients are not
prohibited from inclusion on the List.
As set forth in § 1003.62(a) and (b), such
an organization can be included on the
List if it provides a requisite amount of
pro bono legal services and meets the
other requirements for inclusion, even
though it charges fees to some of its
other clients.4
As the foregoing definition reflects,
this proposed rule also adopts reference
to ‘‘pro bono referral services’’ in place
of the current reference to ‘‘bar
associations.’’ There is no need to
specifically list bar associations since
any pro bono programs offered by them
would either be in the form of a pro
bono referral service or an organization
that is eligible to be included on the List
under proposed § 1003.62(a), (b), or (c).
Adopting the term ‘‘pro bono referral
services’’ also broadens eligibility for
inclusion on the List to referral services
that are not administered by a bar
association.
C. Proposed Changes to Preserve the
Integrity of the List
EOIR has strongly supported various
local efforts to provide pro bono legal
services to aliens appearing before the
immigration judges, the Board of
Immigration Appeals (Board), and the
Office of the Chief Administrative
Hearing Officer (which adjudicates
certain immigration-related civil penalty
actions). In April 2000, EOIR
established a national pro bono program
to improve the development and
coordination of these services and, in
March 2008, EOIR issued formal policy
guidance to immigration judges and
immigration court staff on facilitating
pro bono legal services. See ‘‘Office of
Legal Access Programs,’’
www.usdoj.gov/eoir/probono/
4 Under this proposed rule, an organization or
attorney on the List must provide 50 hours of pro
bono legal services per year in cases in front of each
immigration court location on its application. See
proposed §§ 1003.62, 1003.63. This requirement is
discussed further below.
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
55663
probono.htm; ‘‘Operating Policies and
Procedures Memorandum 08–01:
Guidelines for Facilitating Pro Bono
Legal Services,’’ Mar. 10, 2008,
www.usdoj.gov/eoir/efoia/ocij/oppm08/
08–01.pdf (Last visited July 15, 2014]).
EOIR encourages organizations and
private attorneys to publicize their
willingness to provide pro bono legal
services to aliens appearing before
immigration judges by being included
on the List.5 The EOIR Committee on
Pro Bono, which was formed in
response to Directive 22 of Attorney
General Alberto R. Gonzales’ ‘‘Measures
to Improve the Immigration Courts and
the Board of Immigration Appeals,’’
Aug. 9, 2006, https://www.justice.gov/ag/
readingroom/ag-080906.pdf (Last
visited July 15, 2014), reviewed issues
and concerns regarding the need for
additional safeguards for the List. In its
recommendations to expand and
improve EOIR’s pro bono programs, the
EOIR Committee on Pro Bono
(Committee) recommended that EOIR
publish new regulations to strengthen
the requirements for placing
organizations and private attorneys on
the List. See ‘‘EOIR to Expand and
Improve Pro Bono Programs,’’ Nov. 15,
2007, www.usdoj.gov/eoir/press/07/
ProBonoEOIRExpandsImprove.pdf (Last
visited July 15, 2014). Specifically, the
Committee recommended that private
attorneys not be included on the List
unless they could demonstrate their
inability to provide pro bono legal
services through or in association with
local pro bono organizations or referral
services. The Committee also
recommended that the List be
monitored periodically to ensure that
listed organizations and individuals
were indeed providing free legal
services.
Since the creation of the List, EOIR
has increasingly received complaints
from numerous government sources and
the public that certain private attorneys
may be using the List to advertise or
solicit for paying clients, and do not
provide legal representation to a
significant number of aliens on a pro
bono basis or for any particular amount
of time. For instance, a private attorney
who has declared his or her willingness
to represent indigent aliens on a pro
bono basis may provide pro bono
5 For aliens before the Board, EOIR helps to
provide pro bono representation in appropriate
cases through the BIA Pro Bono Project, which is
administered by EOIR’s Office of Legal Access
Programs. Based on criteria determined by
partnering organizations, EOIR assists in identifying
cases appropriate for pro bono representation.
Partnering organizations then work to find pro bono
representatives in those cases. Additional
information is available at https://www.justice.gov/
eoir/probono/probono.htm#BIAProBono.
E:\FR\FM\17SEP1.SGM
17SEP1
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
55664
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules
representation to only one alien and
otherwise cease to provide pro bono
representation. It is, unfortunately,
common for aliens who contact private
attorneys on the List to be informed that
these attorneys are not available to
accept any more pro bono cases, and are
only available to represent the aliens for
a fee. Though there may be different
reasons why attorneys may find
themselves unable to accept new pro
bono cases at a particular time, there is
reason for concern that at least some
attorneys may not be using the List for
its intended purpose and may be
misleading EOIR, the public, and aliens
as to their true willingness and
availability to provide pro bono
services.
EOIR has not received similar
complaints regarding organizations or
pro bono referral services on the List.
This may be because, unlike private
attorneys, organizations and pro bono
referral services are primarily non-profit
operations and are formed specifically
to assist indigent and low-income
individuals. Thus, although there may
be similar potential for abuse, there is
less incentive for such entities to use the
List improperly. Further, attorneys and
accredited representatives who provide
pro bono services on behalf of
organizations or referral services are
typically supervised, unlike some
private attorneys on the List.
Finally, the regulations do not
currently require organizations or
private attorneys who are included on
the List to represent any minimum
number of indigent aliens on a pro bono
basis over a given period of time.
Requiring ‘‘an attorney to accept a
specific number or percentage of cases
on a pro bono basis in order to be
included on the list of free legal services
providers’’ was considered in
promulgating the 1997 rule. 62 FR 9072
(Feb. 28, 1997). At that time, EOIR
determined that it was not necessary to
include such a requirement. Id.
However, the rule also stated that ‘‘this
issue is subject to further review if
necessary to eliminate any abuses.’’ Id.
The proposed rule seeks to prevent in
five ways the potential for abuse by all
organizations and private attorneys on
the List, explained in greater detail
below. First, the proposed rule requires
that private attorneys on the List, and
attorneys and accredited representatives
providing pro bono legal services before
EOIR on behalf of the organization on
the List, not be subject to an order of
disbarment under § 1003.101(a)(1) or
suspension under § 1003.101(a)(2).
Second, the proposed rule provides that
attorneys must seek to provide pro bono
legal services through or in association
VerDate Sep<11>2014
18:21 Sep 16, 2014
Jkt 232001
with an organization or pro bono
referral service if possible. Third, it
requires every organization or
individual on the List to provide a
minimum of 50 pro bono hours a year
in each immigration court location
where the provider intends to be
included on the List. Fourth, this
proposed rule allows for and encourages
public participation in the application
process of an organization, referral
service, or private attorney seeking to be
included on the List. Finally, once a
provider’s name is included on the List,
the provider must declare under penalty
of perjury every three years that the
provider is qualified to remain on the
List.
The following is a description of the
five ways the proposed rule seeks to
limit the potential for abuse by the
organizations and private attorneys on
the List.
1. Professional Conduct Standards
The new eligibility requirements aim
to ensure that private attorneys on the
List, and attorneys and accredited
representatives who provide pro bono
legal services for organizations on the
List, satisfy EOIR’s professional conduct
standards.6
The proposed rule requires that
private attorneys on the List, as well as
attorneys and accredited representatives
who provide pro bono services before
EOIR on behalf of an organization on the
List, not be subject to an order of
disbarment under § 1003.101(a)(1) or
suspension under § 1003.101(a)(2). See
proposed § 1003.62(a)(3) (pertaining to
organizations recognized under
§ 1292.2), (b)(4) (pertaining to
organizations not recognized under
§ 1292.2), (d)(1) (pertaining to
attorneys). When applying to be
included on the List, an attorney must
submit a written declaration that he or
she is not the subject of an order of
disbarment under § 1003.101(a)(1) or
6 The standards described in this footnote relate
to compliance with EOIR’s professional conduct
standards. In addition, to be eligible for inclusion
on the List, or to provide pro bono services before
EOIR on behalf of an organization on the List, an
attorney must comply with state bar association
standards. Specifically, EOIR’s regulatory definition
of ‘‘attorney’’ states that an attorney cannot be
‘‘under any order suspending, enjoining,
restraining, disbarring, or otherwise restricting him
in the practice of law.’’ § 1001.1(f). This includes
any such order issued by a state bar association. In
an application to be included on the List, an
attorney must declare, under penalty of perjury,
‘‘[t]hat he or she is not under any order suspending,
enjoining, restraining, disbarring, or otherwise
restricting him or her in the practice of law.’’
Proposed § 1003.63(d)(6). An organization must
make such a declaration with respect to every
attorney providing pro bono legal services before
EOIR on the organization’s behalf. Proposed
§ 1003.63(b)(2)(ii).
PO 00000
Frm 00006
Fmt 4702
Sfmt 4702
suspension under § 1003.101(a)(2). See
proposed § 1003.63(d)(7). Similarly, an
organization, whether or not recognized,
must submit a written declaration that
no attorney or accredited representative
who will provide pro bono legal
services on behalf of the organization
before EOIR is the subject of such an
order of disbarment or suspension.
Each of the declarations to be made by
private attorneys under proposed
§ 1003.63(d), or organizations under
proposed § 1003.63(b), must be made
‘‘under penalty of perjury.’’ Use of this
term is consistent with language used in
the declarations on Forms EOIR–28
(Notice of Entry of Appearance as
Attorney or Representative Before the
Immigration Court) and EOIR–27
(Notice of Entry of Appearance as
Attorney or Representative Before the
Board of Immigration Appeals), which
must be signed and filed each time an
attorney or representative enters his or
her appearance in a matter before the
immigration judge or the Board. See
§ 1003.17(a) (requiring the filing of Form
EOIR–28 with the immigration court);
§ 1003.2(g)(1) (requiring the filing of
Form EOIR–27 with the Board);
§ 1003.3(a)(3) (same).
The proposed rule contains no
requirement pertaining to other
disciplinary actions. Such actions
include public or private censure under
1003.101(a)(3) and admonition under
§ 1003.104(c). An attorney can be
included on the List even if he or she
was recently subject to such a
disciplinary action, and an organization
can be included on the List even if an
attorney or accredited representative
providing pro bono legal services on its
behalf before EOIR was recently subject
to such an action.
2. Ability To Provide Pro Bono Legal
Services in Association With
Organizations and Referral Services
The new eligibility requirements for
private attorneys further aim to ensure
that only those attorneys who are
genuinely interested in and capable of
providing pro bono services are
included on the List.
Many immigration court locations are
in areas with developed pro bono
programs that are sufficiently capable of
assessing the legal claims and financial
resources (‘‘intake’’ and ‘‘screening’’) of
large numbers of aliens in immigration
proceedings and coordinating pro bono
representation with local private
attorneys. These programs often provide
private attorneys with specialized legal
training, ongoing mentoring, and other
assistance in their pro bono cases as a
recruitment incentive. Thus, where
sufficient local organizations or pro
E:\FR\FM\17SEP1.SGM
17SEP1
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
bono referral programs are available to
identify aliens in need of pro bono legal
services, as well as recruit and assist
private attorneys interested in providing
these services, private attorneys are able
to provide pro bono services through or
in association with such local
organizations or referral programs. In
such a situation, there is little to no
need for private attorneys to be included
by name on the List.
However, EOIR recognizes that in
some instances, especially for
immigration court locations in rural
areas or small cities, private attorneys
may be the only available and willing
sources of pro bono legal services. For
instance, some areas may have no pro
bono organizations or may have
organizations that lack programs to
recruit and support pro bono attorneys.
In addition, some pro bono
organizations offer a limited range of
immigration services, and do not offer
referral programs for all types of cases
before the immigration court.
The Department has designed the
proposed rule to allow private attorneys
in such circumstances to continue to be
included on the List. Accordingly, this
rule proposes to amend § 1003.62(d) to
state that, to be included on the List, an
individual attorney must demonstrate
that he or she cannot provide pro bono
legal services through or in association
with an organization or referral service
because: (i) Such an organization or
referral service is unavailable; or (ii) the
range of services provided by the
existing organization(s) or referral
service(s) are insufficient to address the
needs of the community. Under the
‘‘Applications’’ section at
§ 1003.63(d)(3), an attorney is further
required to submit a written declaration
that describes the good-faith efforts he
or she made to provide pro bono legal
services through an organization or pro
bono referral service at each
immigration court location where the
private attorney is willing to provide
pro bono legal services.
3. Minimum Requirement of 50 Pro
Bono Hours per Year
This rule proposes a new requirement
that, once on the List, an attorney or
organization perform at least 50 hours of
pro bono legal services annually at each
immigration court location where the
attorney or organization intends to be
included on the List. See proposed
§ 1003.62(a)(1), (b)(2), (d)(2). This
requirement aims to ensure that only
those organizations and private
attorneys genuinely interested in
providing pro bono services are
included on the List. This requirement
applies to organizations as well as
VerDate Sep<11>2014
18:21 Sep 16, 2014
Jkt 232001
private attorneys. As noted above, some
organizations charge reduced or
nominal fees in an attempt to provide
services to aliens who cannot afford
private attorney rates but have a modest
ability to pay. However, services
provided for a fee—even a nominal
fee—are not pro bono services, and
therefore do not count toward the 50hour requirement. This requirement
does not apply to pro bono referral
services; there is no minimum annual
amount of pro bono legal services that
a referral service must provide.
Only pro bono legal services provided
in cases before the immigration court
location identified in the attorney’s or
organization’s application count toward
the 50-hour requirement. See proposed
§ 1003.63(a)(3), (b)(1), (d)(1). If an
attorney or organization identifies more
than one immigration court location,
then the attorney or organization must
provide at least 50 hours of pro bono
legal services in cases before each
location. For instance, a provider who
seeks to be listed as providing pro bono
services before the Arlington
Immigration Court and the Baltimore
Immigration Court must provide 50
hours of pro bono services before the
Arlington Immigration Court and 50
hours of pro bono services before the
Baltimore Immigration Court each year.
This is intended to ensure, to the
maximum extent possible, that attorneys
and organizations listed as available to
provide pro bono legal services at a
particular immigration court location
are actually able to provide pro bono
services at that location.7 However, a
provider is not required to provide 50
hours of in-court pro bono service per
year. Rather, all time spent providing
pro bono legal services in cases before
a particular immigration court location,
including out-of-court preparation time,
counts toward the 50-hour requirement.
Due to the new requirement that
private attorneys must first seek to
provide pro bono services through an
organization or referral service, the
Department does not believe that this
50-hour requirement will overly burden
an individual attorney’s ability to
provide pro bono services. The
individual attorney might commit to
provide any number of pro bono hours
through an organization or referral
service on the List. An individual
attorney associated with an organization
on the List would not be required to
provide 50 hours per year. Rather, the
organization as a whole would commit
7 Pro bono legal services provided before the
Board do not count toward the 50-hour
requirement. As noted in footnote 5, EOIR assists
in providing pro bono legal services in appropriate
instances through the BIA Pro Bono Project.
PO 00000
Frm 00007
Fmt 4702
Sfmt 4702
55665
to providing at least 50 hours of pro
bono representation per year before each
immigration court location identified in
the organization’s application.
This 50-hour annual minimum is
intended to provide a clear measure of
the amount of pro bono representation
that is acceptable in order for an
organization or private attorney to be
qualified to be included on the List. A
number of state bar associations and
private law firms use 50 hours as the
recommended annual minimum for pro
bono work and this number is also
found in the American Bar Association’s
(ABA) Model Rules of Professional
Conduct.8 The Department believes this
prevailing standard strikes the balance
between private attorneys whose
primary practice is the business of feegenerating clients but who are genuinely
interested in providing pro bono
services, and organizations that are
primarily formed to assist indigent and
low-income individuals. The proposed
rule also provides that failure to provide
the 50-hour annual minimum subjects
attorneys and organizations to removal
from the List under new § 1003.65.
The Department also recognizes,
however, that a particular minimum
may be burdensome for some or result
in a de facto maximum standard that
undermines the purpose of the List.
Accordingly, the Department is
soliciting comments on whether this 50hour annual minimum is an acceptable
measure of how much pro bono
representation an organization or
private attorney should provide in order
to remain on the List. In particular, the
Department welcomes comments on the
following questions:
Question 1. Would a 50-hour annual
minimum be too demanding for private
attorneys who manage a fee-generating
practice, but also want to engage in
immigration-related pro bono work and
cannot provide pro bono service
through or in association with an
organization or referral service?
Question 2. Conversely, is a 50-hour
annual minimum not enough for
organizations that seek to be included
on the List?
Question 3. Should the standards for
organizations and private attorneys
differ from one another in any other
way? For example, should the rule
require that each attorney or accredited
representative performing legal services
on behalf of an organization perform a
certain amount of pro bono work per
year, as opposed to requiring that the
8 ABA Rule 6.1 (Voluntary Pro Bono Publico
Service) states that ‘‘[a] lawyer should aspire to
render at least (50) hours of pro bono publico legal
services per year.’’
E:\FR\FM\17SEP1.SGM
17SEP1
55666
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules
organization as a whole perform a
certain amount of work?
Question 4. Are there alternative
standards that would be more
appropriate measures of the level of pro
bono representation that an organization
or a private attorney should provide in
order to be included on the List, e.g., the
number of cases accepted or the types
of cases accepted?
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
4. Continuing Certification
This proposed rule also would require
at § 1003.64(b)(2) that, every three years
from the date the application to be
included on the List is approved, each
provider must declare that the provider
continues to be qualified to remain on
the List under paragraphs (a), (b), (c), or
(d) of § 1003.62. As part of the
declaration, the provider must include
alien registration numbers of clients in
whose cases the provider rendered pro
bono legal services under EOIR’s
regulations, representing at least 50
hours of pro bono legal services each
year since the provider’s most recent
such declaration, or since the provider
was included on the List, whichever
was more recent. This continuing
certification puts a reasonable
responsibility on providers to keep
EOIR informed of their willingness to
provide pro bono legal services and
their qualifications to be included on
the List. The current rule provides no
means by which EOIR remains informed
that providers continue to provide pro
bono legal services once their names are
included on the List. Unless EOIR is
specifically notified that a provider is
no longer providing pro bono legal
services, it is difficult for EOIR to
ascertain whether a provider should
remain on the List. Under the proposed
rule, however, EOIR will remove a
provider from the List at the next
quarterly update if the provider fails to
comply with the continuing certification
requirement.9
For providers whose applications to
be included on the List are approved
before the date of publication of the
final rule, a new application must be
filed in compliance with the new
qualification and eligibility
requirements set forth in this rule as
follows: organizations and pro bono
referral services, within one year of the
9 As described further in section II–G of this
preamble, a provider can be removed from the List
in other circumstances as well. Specifically, as
provided in § 1003.65, a provider may be removed
if subject to automatic removal, if the provider
submits a request for removal, if the provider fails
to answer an EOIR inquiry in response to
complaints, or if, following proceedings initiated by
the EOIR Director, the EOIR Director determines
that the provider is no longer qualified to remain
on the List.
VerDate Sep<11>2014
18:21 Sep 16, 2014
Jkt 232001
date of publication of the final rule;
attorneys, within six months of the date
of publication of the final rule. See
proposed § 1003.63(e). These time
periods strike a balance between
allowing both providers and EOIR
sufficient time to phase in these new
requirements and addressing the
public’s need for an updated list of
available, local pro bono legal service
providers. The time period for attorneys
is shorter than for organizations and pro
bono referral services because, as noted
above, the complaints EOIR has
received primarily relate to attorneys.
While the List already comprises well
over 100 providers, the allotted time
periods should be sufficient for these
providers to reapply and be subject to
the 15-day notice and comment period
under § 1003.63(f).
5. Public Participation
Another means by which the
proposed rule aims to improve the
integrity of the List is by engaging the
public in the application process under
§ 1003.63(f). The proposed rule requires
EOIR to publicly post for a 15 day
period the names of applicants, whether
organizations, pro bono referral services,
or individuals, who meet the regulatory
requirements to provide pro bono
services to aliens in proceedings in
order to allow the public an opportunity
to send comments to EOIR and the
applicant. The names of applicants will
be posted on EOIR’s Web site, and may
also be posted at the immigration court
location where the applicant intends to
provide pro bono services. Under the
proposed rule, any individual or
organization may forward its comments
or recommendations for approval or
disapproval of the publicly available
applications to the Director. The rule
will require that such comments also be
served on the applicant so that the
applicant has an opportunity to
respond.
D. Improper Use of the List To Solicit or
Advertise for Paying Clients
This proposed rule also states, at
§ 1003.65(d)(1)(iii), that a provider shall
be removed from the List for improperly
using the List for the primary purpose
of soliciting, or advertising to, potential
paying clients since doing so is clearly
contrary to the List’s intended purpose.
Current regulations do not explicitly
impose a removal requirement for use of
the List for these purposes.
Unfortunately, EOIR has received
numerous complaints that aliens who
contact private attorneys on the List are
commonly informed that the private
attorneys are not available to accept any
pro bono cases and are only available to
PO 00000
Frm 00008
Fmt 4702
Sfmt 4702
represent the aliens for a fee. As noted
above, though there may be different
reasons why attorneys are not able to
accept additional pro bono cases at a
particular time, this gives rise to
concerns that at least some private
attorneys may be using the List as free,
government-supported advertising for
fee-generating services. This may be
misleading to aliens who would not
have otherwise contacted the private
attorney and who may also mistakenly
believe that private attorneys on the List
are in some manner endorsed by the
government. These issues are of
particular concern as aliens in
immigration proceedings are often
unfamiliar with the legal system in the
United States and may have limited
English proficiency.
Such practice not only degrades the
integrity of the List, but may also violate
§ 1003.102(f)(1),10 state bar rules or the
ABA’s Model Rules of Professional
Conduct.11 Use of the List by a private
attorney to induce aliens into contacting
the attorney for pro bono legal services
when these are not commonly provided
may also raise questions about whether
such conduct might amount to
impermissible solicitation by the private
attorney for fee-generating legal
services. Improperly soliciting clients is
grounds for discipline under
§ 1003.102(d) and is prohibited by
various state bar rules, and the ABA’s
Model Rules. In order to safeguard the
integrity of the List and promote aliens’
interests in obtaining pro bono legal
services, § 1003.65(d)(1)(iii) of the
proposed rule states that a provider is
subject to removal from the List for
improperly using it primarily to
advertise for or solicit clients for
compensated legal services.
Additionally, § 1003.65(d)(5) states that
removal from the list pursuant to
§ 1003.65(d)(1)(iii) shall be without
prejudice to the authority to discipline
an attorney or representative under
EOIR’s rules and procedures for
10 Under § 1003.102(f), a practitioner is subject to
disciplinary action by EOIR if he or she
‘‘[k]nowingly or with reckless disregard makes a
false or misleading communication about his or her
qualifications or services. A communication is false
or misleading if it: (1) Contains a material
misrepresentation of fact or law, or omits a fact
necessary to make the statement considered as a
whole not materially misleading. . . .’’
11 Most, if not all, states have a rule similar to
ABA Model Rule 7.1 (Communications Concerning
A Lawyer’s Services), which states that: ‘‘[A] lawyer
shall not make a false or misleading communication
about the lawyer or the lawyer’s services. A
communication is false or misleading if it contains
a material misrepresentation of fact or law, or omits
a fact necessary to make the statement considered
as a whole not materially misleading.’’
E:\FR\FM\17SEP1.SGM
17SEP1
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules
professional conduct for practitioners
listed in part 1003, subpart G.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
E. Requesting Removal From the List
The Department recognizes that
circumstances may arise where an
individual attorney or organization on
the List may legitimately be unable to
continue accepting additional pro bono
cases for a certain period, such as a full
case load or reaching the annual
limitation on pro bono hours by an
attorney practicing in a law firm. In that
instance, the provider can request
removal from the List as set forth in
§ 1003.65(b)(1). Under § 1003.65(b)(2),
any provider granted removal from the
List may thereafter seek reinstatement
upon written notice and submission of
a new eligibility declaration, as
specified in section 1003.63(b), (c), or
(d). However, reinstatement, like initial
inclusion, is subject to the discretion of
the Director. Also, reinstatement will
not affect the continuing qualification
requirement set forth in § 1003.64(b)(2),
which requires providers to submit a
new declaration of eligibility every three
years from the date of the original
application’s approval.
F. Available Services From the Pro Bono
Provider
The proposed rule also requires at
§ 1003.63 that when applying to be
included on the List, providers specify
whether there are any limitations on the
pro bono legal services they provide.
Currently, § 1003.63 only requires the
application to indicate whether a
provider will represent ‘‘indigent aliens
in immigration proceedings pro bono.’’
§ 1003.63(d)(1)(ii). Yet, it is common
practice for providers on the List to
specify not only if they will represent
aliens in specific types of proceedings
(e.g., asylum, VAWA), but to state other
limitations on the services they are
willing to provide. For instance, some
providers are unwilling to represent
detained aliens. However, immigration
court locations often use the same List
for both detained and non-detained
aliens, even though many providers on
the List for a particular court are
unwilling or unable to provide pro bono
legal services to detained aliens. This
practice can create confusion and
unnecessary frustration for both
detained aliens and the local court.
Accordingly, this proposed rule
codifies the already existing practice of
specifying any limitations that may exist
on a provider’s willingness to provide
pro bono legal services. For example, if
a provider only provides pro bono
representation for asylum seekers, or
does not represent aliens in detention,
this must be specified. Sections
VerDate Sep<11>2014
18:21 Sep 16, 2014
Jkt 232001
1003.65(d)(1)(i) and 1003.66 of the rule
also subject a provider to removal from
the List for failing to notify EOIR of any
changes to these limitations. This rule
will assist both EOIR in assembling the
List for each immigration court location,
as well as aliens in directing their
search.
G. Removal of Providers From the List
The proposed rule transfers from the
Chief Immigration Judge to the Director
of EOIR responsibility for maintaining
the List, exercising authority and
discretion to approve or deny an
application, and removing a provider
from the List. The Director may delegate
such authority to any office or official
within EOIR. See proposed
§ 1003.61(a)(1)(b).
Under the proposed rule, there are
four ways a provider can be removed
from the List.
First, under § 1003.65(a), an attorney
can be automatically removed from the
List if the Director determines that the
attorney is the subject of an order of
disbarment under § 1003.101(a)(1) or
suspension under § 1003.101(a)(2).
Automatic removal applies only to
private attorneys, and not to
organizations or referral services.
Second, under § 1003.65(b), a
provider can voluntarily request to be
removed from the List.
Third, under § 1003.65(c), if EOIR
receives complaints that a particular
provider may no longer be providing
pro bono services, EOIR can inquire, in
writing, into the provider’s pro bono
practices. This will allow the provider
to become aware of the receipt of
complaints, and to provide an
appropriate response. In appropriate
cases, if in fact the provider is no longer
in a position to provide pro bono
services, the provider may request
voluntary removal from the List. Where
the provider fails to respond, EOIR may
choose to remove the provider from the
List.
Fourth, paragraph (d) of 1003.65
provides formal procedures for
removing a provider from the List in
circumstances not covered by
paragraphs (a), (b), or (c) of that section.
Under § 1003.65(d), the Director can
initiate procedures to remove a provider
from the List if the Director determines
that a provider has: Failed to comply
with § 1003.66 (change in address or
status), filed a false declaration in
connection with an application filed
pursuant to § 1003.63, improperly used
the List primarily to advertise or solicit
clients for compensated legal services,
or failed to comply with any other
requirements under subpart E.
PO 00000
Frm 00009
Fmt 4702
Sfmt 4702
55667
If the Director decides to initiate
procedures under § 1003.65(d), the
Director must promptly inform the
provider in writing of the Director’s
intention to remove the provider from
the List. The provider then has 30 days
to submit a written response
establishing, by clear and convincing
evidence, that the provider continues to
meet the qualifications for inclusion on
the List. The response must include a
declaration under penalty of perjury as
to the provider’s continued compliance
with the eligibility requirements,
including individual examples of
specific alien registration numbers of
clients in whose cases the provider
rendered pro bono legal services,
representing at least 50 hours of service
each year since the provider’s most
recent declaration under § 1003.64(b)(2),
or since the provider was included on
the List, whichever was more recent.
See proposed § 1003.65(d)(3). If the
provider submits a response, the
Director will consider the response
before deciding whether to remove the
provider from the List. See proposed
§ 1003.65(d)(4).
H. Additional Revisions
The proposed rule provides
additional clarification by rearranging
some of the sections and section
headings. For instance, the proposed
rule renames the heading of § 1003.62 as
‘‘Eligibility’’ (presently titled
‘‘Qualifications’’), as the new heading
better describes the requirements set
forth in that section. Proposed new
§ 1003.61(c) (‘‘Qualification’’) sets forth
the criteria that make an entity or
individual ‘‘qualified’’ to be included on
the List, including that the entity or
individual meet the eligibility
requirements under § 1003.62.
Moreover, the proposed rule specifies
at § 1003.64(a) that the approval and
denial of applications to be included on
the List are discretionary determinations
by the EOIR Director. The proposed rule
also eliminates the right to appeal to the
Board, as currently provided in
§ 1003.64 and § 1003.65(a), the denial of
an application to be included on the
List, as well as a determination to
remove a provider from the List. These
changes are made for two reasons. First,
the List is designed specifically to
benefit aliens and not the providers
listed. As application for placement on
the List is completely voluntary and
does not confer any rights or benefits to
providers, there are no due process
concerns with denying an application to
be included on the List or removing a
provider from the List. Second,
applicants to be included on the List, as
well as providers who are removed from
E:\FR\FM\17SEP1.SGM
17SEP1
55668
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
the List, may reapply through the
normal application process, or may seek
reinstatement in the limited
circumstance where the Director
previously granted removal at the
request of the person or organization, as
set forth in § 1003.65(b)(2).
Finally, with regard to the denial of
an application under § 1003.64 or a
decision to remove a provider from the
List under § 1003.65, the proposed rule
states that when serving documents on
an applicant, the Director shall comply
with the definition of ‘‘service’’ in
§ 1003.13.
I. Proceedings Before the Department of
Homeland Security
As noted above, section 208(d)(4)(B)
of the Act requires that asylum
applicants be provided ‘‘a list of persons
. . . who have indicated their
availability to represent aliens in
asylum proceedings on a pro bono
basis.’’ For aliens in asylum proceedings
before the Department of Homeland
Security (DHS), U.S. Citizenship and
Immigration Services (USCIS), USCIS
currently complies with this
requirement by providing a modified
version of EOIR’s List. Specifically,
USCIS reorganizes EOIR’s List around
the geographic area served by each of
USCIS’s eight asylum offices; the
providers in the area served by each
office are listed under that office.
Separately, U.S. Immigration and
Customs Enforcement (ICE) with DHS
provides EOIR’s List to aliens subject to
expedited removal as aggravated felons
who are not lawful permanent residents,
and in certain instances involving
detained juveniles. See §§ 236.3(g)
(detained juveniles), 238.1(b)(2)(iv)
(expedited removal).
The new requirements of this
proposed rule are focused solely on pro
bono providers who wish to be included
on EOIR’s List because they are
providing pro bono legal services before
the immigration courts; these
requirements and limitations are not
intended to account for pro bono
representation of aliens before DHS.
Thus, this proposed rule does not
limit whether and how pro bono
providers may represent aliens before
DHS, nor does it limit how DHS notifies
aliens of the availability of pro bono
legal services. Under this proposed rule,
DHS can continue to provide EOIR’s
List to aliens who are in proceedings
before DHS, and can continue to modify
the List as DHS deems appropriate. As
explained above, under the proposed
rule, only pro bono services in cases
before EOIR, specifically at the
immigration court location or locations
identified in a provider’s application,
VerDate Sep<11>2014
18:21 Sep 16, 2014
Jkt 232001
will count toward the 50-hour annual
requirement. This is to ensure, as much
as possible, that pro bono providers
listed for a particular immigration court
location are actually available to
provide pro bono services there. But the
50-hour annual requirement under this
proposed rule does not apply with
respect to providing pro bono services
before DHS. Thus, in modifying EOIR’s
List, if DHS wishes to add providers
EOIR did not include—for example,
those who practice exclusively or
mostly before DHS—then DHS may do
so. EOIR recognizes the importance of
its List in assisting DHS to notify aliens
of pro bono legal service providers. The
Department believes that this proposed
rule is appropriate in that it responds to
concerns regarding pro bono
representation before EOIR, while not
limiting DHS’s ability to modify EOIR’s
List as it chooses, or otherwise to inform
aliens of pro bono legal service
providers in the manner DHS deems
best.
III. Regulatory Requirements
Regulatory Flexibility Act
The Attorney General, in accordance
with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this
regulation and, by approving it, certifies
that this rule will not have a significant
economic impact on a substantial
number of small entities. Some small
entities, such as non-profit
organizations or small law offices, will
be affected by this rule. Organizations or
private attorneys may be removed from
the List of Pro Bono Legal Service
Providers if they are no longer qualified
to be on the List under this proposed
rule. Likewise, those who wish to have
their names included on this List will be
affected as they will have to
demonstrate their eligibility to have
their names listed. However, application
for placement on the List is completely
voluntary and does not confer any rights
or benefits on such organizations or law
offices. Placement on the List does not
constitute government endorsement of a
particular entity or private attorney; nor
is the List to be used for advertising or
soliciting. Rather, the purpose of the
List is to provide aliens notification that
these entities or private attorneys are
available to provide uncompensated
legal services without any direct or
indirect remuneration (other than filing
fees or photocopying and mailing
expenses).
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
PO 00000
Frm 00010
Fmt 4702
Sfmt 4702
private sector of $100 million or more
in any one year and also 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 (2 U.S.C. 1531–1535).
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
enterprises to compete with foreignbased enterprises in domestic and
export markets.
Executive Order 12866 and Executive
Order 13563 (Regulatory Planning and
Review)
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, therefore, it has not been
reviewed by the Office of Management
and Budget. Nevertheless, the
Department certifies that this regulation
has been drafted in accordance with the
principles of Executive Order 12866,
section 1(b), and Executive Order 13563.
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health, and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits,
reducing costs, harmonizing rules, and
promoting flexibility. Additionally, it
calls on each agency to periodically
review its existing regulations and
determine whether any should be
modified, streamlined, expanded, or
repealed so as to make the agency’s
regulatory program more effective or
less burdensome in achieving its
regulatory objectives.
This rule affects the function and
purpose of the Pro Bono Service
Provider List. The benefits of this
proposed rule include addressing longstanding problems of abuse associated
with the existing List, updating the term
‘‘free’’ with ‘‘pro bono’’ legal services to
reflect the proper statutory language,
E:\FR\FM\17SEP1.SGM
17SEP1
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules
creating a minimum number of annual
pro bono hours to ensure proper
compliance with the spirit of the
regulation, and creating greater agency
flexibility to remove List participants
who do not meet the minimum
regulatory requirements. Further, the
rule is intended to provide aliens with
better information regarding the
availability of pro bono representation
before the immigration courts, thus
benefitting aliens who appear in
proceedings before the courts.
Burdens to the public are applicable
only to attorneys and organizations
making a voluntary decision to seek to
be included on the list; these include
requirements to apply for inclusion on
the List, maintain updated contact
information, perform a minimum of 50
annual pro bono hours of service at each
immigration court location where the
attorney or organization intends to be
included on the List, and file a
declaration every three years of
continuing eligibility to be on the List.
The regulations provide for removal
from the List of a provider who can no
longer meet the requirements of
inclusion on the List. The Department
examined these burdens to the public
and has determined that the benefits
outweigh the burdens. The Department
believes that this rule will have a
minimal economic impact on List
participants because it provides List
participants with flexible means of
complying with the rule’s requirements.
Further, it will not have a substantial
economic impact on Department
functions, as the Department is already
maintaining and updating such a List
quarterly. The Department believes this
rule will have a positive economic
impact for aliens in proceedings before
EOIR who need legal services, as the
rule is intended to preserve the integrity
of the List and ensure that providers on
the List are actually available to provide
pro bono legal services.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
Executive Order 13132 (Federalism)
This rule will not have substantial
direct effects on the States, on the
relationship between the national
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
VerDate Sep<11>2014
18:21 Sep 16, 2014
Jkt 232001
Executive Order 12988 (Civil Justice
Reform)
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The Department of Justice, Executive
Office for Immigration Review (EOIR), is
submitting the following information
collection request to the Office of
Management and Budget (OMB) for
review and clearance in accordance
with review procedures of the
Paperwork Reduction Act of 1995,
Public Law 104–13, 44 U.S.C. chapter
35, and its implementing regulations, 5
CFR part 1320. The information
collection is published to obtain
comments from the public and affected
agencies. Written comments and
suggestions are encouraged and will be
accepted for 60 days. If you have
comments on the estimated public
burden, associated response time, or
suggestions, please contact EOIR as
noted above.
Comments that will provide the most
assistance will evaluate: (1) Whether the
proposed collection of information is
necessary for the proper performance of
the functions of the agency, including
whether the information will have
practical utility; (2) whether the
proposed collection of information
enhances the quality, utility, and clarity
of the information to be collected; (3)
the accuracy of the agency’s estimate of
the burden of the proposed collection of
information, including the validity of
the methodology and assumptions used;
and (4) whether the burden of the
collection of information on those who
are to respond can be minimized
through the use of appropriate
automated, electronic, mechanical, or
other technological collection
techniques or other forms of information
technology, e.g., permitting electronic
submission of information.
There is currently no specific form or
information collection instrument
associated with this request.12 Rather,
this rule implements new eligibility and
application requirements in order for an
organization, pro bono referral service,
or private attorney to be included on the
List of Free Legal Services Providers (to
be renamed, through this rule, the ‘‘List
of Pro Bono Legal Service Providers’’).
Organizations and private attorneys that
file an application (for which no
specific form is currently required) with
EOIR to be included on the List must
demonstrate that they provide, or plan
12 The Department contemplates implementing an
electronic/Internet-based system in the future that
may facilitate the collection of information.
PO 00000
Frm 00011
Fmt 4702
Sfmt 4702
55669
to provide, a minimum of 50 hours per
year of pro bono legal services at each
immigration court location where they
intend to be included on the List.
Entities and individuals must indicate
‘‘their availability to represent aliens in
asylum proceedings on a pro bono
basis’’ (see INA 208(d)(4)(B)) and ‘‘their
availability to represent pro bono aliens
in proceedings under section 240’’ (see
INA 239(b)(2)). They must also indicate
whether there are any limitations on the
services they plan to provide and in
which immigration court locations they
plan to provide such services. Private
attorneys must demonstrate that they
cannot otherwise provide such services
through an organization or pro bono
referral service. Finally, all providers
must file a declaration every three years
that they remain eligible to be on the
List.
As explained in this proposed rule,
these additional requirements will
enhance the integrity of the List by
ensuring that only those who genuinely
intend to provide pro bono services are
included on the List. These
requirements will benefit aliens in need
of pro bono legal services and will also
prevent the use of the List primarily for
improper solicitation and advertisement
with respect to potential clients for paid
legal services. It is not mandatory for
organizations, pro bono referral services,
or private attorneys to be included on
the List in order to represent aliens on
a pro bono basis before EOIR. Placement
on the List is completely voluntary and
does not confer any rights or benefits on
entities or individuals who are included
on the List. Placement on the List in no
way constitutes government
endorsement of a particular entity or
private attorney, nor is the List to be
used for advertising or soliciting.
Rather, the purpose of the List is to
provide aliens notification that these
entities or private attorneys are available
to provide legal services without any
direct or indirect remuneration (other
than filing fees or photocopying and
mailing expenses).
EOIR currently uses appropriate
information technology to reduce
burden and improve data quality,
agency efficiency, and responsiveness to
the public. Under this proposed rule,
EOIR would continue to do so to the
maximum extent practicable. EOIR will
collect the information for any person or
entity seeking to be included on EOIR’s
List of Free Legal Services Providers (to
be renamed the ‘‘List of Pro Bono Legal
Service Providers’’). Under the current
regulation, it is estimated that it takes a
total of 17 hours annually to provide the
required information (50 applicants per
year at 20 minutes per application).
E:\FR\FM\17SEP1.SGM
17SEP1
55670
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules
Under the proposed rule, it is estimated
that 129 applicants will file applications
each year for the first two years (phasein period) and take an average of 30
minutes for each application, resulting
in an estimated total of 65 hours each
year. After the first two years, it is
estimated that there will be 93
applicants per year, expending an
average of 30 minutes for each
application, resulting in an estimated
total of 47 hours each year. This would
be an increase from the current
estimated annual hours by 48 hours
annually for the two-year phase-in
period and 30 hours annually for the
succeeding years.
List of Subjects
8 CFR Part 1003
Administrative practice and
procedure, Aliens, Immigration, Legal
services, Organizations and functions
(Government agencies).
8 CFR Part 1240
Administrative practice and
procedure, Aliens.
8 CFR Part 1241
Administrative practice and
procedure, Aliens, Immigration.
Accordingly, for the reasons stated in
the preamble, the Attorney General
proposes amending parts 1003, 1240,
and 1241 of chapter V of title 8 of the
Code of Federal Regulations as follows:
PART 1003—EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW
1. The authority citation for part 1003
continues to read as follows:
■
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8
U.S.C. 1101, 1103, 1154, 1155, 1158, 1182,
1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28
U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No.
2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002;
section 203 of Pub. L. 105–100, 111 Stat.
2196–200; sections 1506 and 1510 of Pub. L.
106–386, 114 Stat. 1527–29, 1531–32; section
1505 of Pub. L. 106–554, 114 Stat. 2763A–
326 to –328.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
§ 1003.1 Organization, jurisdiction, and
powers of the Board of Immigration
Appeals.
2. Amend § 1003.1 by removing and
reserving paragraph (b)(11).
■ 3. Revise the heading for subpart E to
read as follows:
■
Subpart E—List of Pro Bono Legal
Service Providers
■
18:21 Sep 16, 2014
Jkt 232001
General provisions.
(a) Definitions.
(1) Director. Director means the
Director of the Executive Office for
Immigration Review (EOIR), pursuant to
8 CFR 1001.1(o), and shall also include
any office or official within EOIR to
whom the Director delegates authority
with respect to subpart E of this part.
(2) Pro bono legal services. Pro bono
legal services are those uncompensated
legal services performed for indigent
aliens or the public good without any
expectation of either direct or indirect
remuneration, including referral fees
(other than filing fees or photocopying
and mailing expenses), although a
representative may be regularly
compensated by the firm, organization,
or pro bono referral service with which
he or she is associated.
(3) Organization. A non-profit
religious, charitable, social service, or
similar group established in the United
States.
(4) Pro bono referral service. A referral
service, offered by a non-profit group,
association, or similar organization
established in the United States that
assists persons in locating pro bono
representation by making case referrals
to attorneys or organizations that are
available to provide pro bono
representation.
(5) Provider. Any organization, pro
bono referral service, or attorney whose
name is included on the List of Pro
Bono Legal Service Providers.
(b) Authority. The Director shall
maintain a list, known as the List of Pro
Bono Legal Service Providers (List), of
organizations, pro bono referral services,
and attorneys qualified under this
subpart to provide pro bono legal
services in immigration proceedings.
The List, which shall be updated not
less than quarterly, shall be provided to
aliens in removal and other proceedings
before an immigration court.
(c) Qualification. An organization, pro
bono referral service, or attorney
qualifies to be included on the List if the
eligibility requirements under § 1003.62
and the application procedures under
§ 1003.63 are met.
(d) Organizations. Approval of an
organization’s application to be
included on the List under this subpart
is not equivalent to recognition under
§ 1292.2 of this chapter. Recognition
under § 1292.2 of this chapter does not
constitute a successful application for
purposes of the List.
■ 5. Revise § 1003.62 to read as follows:
§ 1003.62
4. Revise § 1003.61 to read as follows:
VerDate Sep<11>2014
§ 1003.61
Eligibility.
(a) Organizations recognized under
§ 1292.2. An organization that is
PO 00000
Frm 00012
Fmt 4702
Sfmt 4702
recognized under § 1292.2 of this
chapter is eligible to apply to have its
name included on the List if:
(1) The organization will provide a
minimum of 50 hours per year of pro
bono legal services to aliens at each
immigration court location where the
organization intends to be included on
the List, in cases where an attorney or
representative of the organization files a
Form EOIR–28 Notice of Entry of
Appearance as Attorney or
Representative before the Immigration
Court (EOIR–28 Notice of Entry of
Appearance);
(2) The organization has on its staff at
least one attorney, as defined in
§ 1292.1(a)(1) of this chapter, or at least
one accredited representative, as
defined in § 1292.1(a)(4) of this chapter;
and
(3) No attorney or accredited
representative who will provide pro
bono legal services on the organization’s
behalf before EOIR is the subject of an
order of disbarment under
§ 1003.101(a)(1) or suspension under
§ 1003.101(a)(2).
(b) Organizations not recognized
under § 1292.2. An organization that is
not recognized under § 1292.2 of this
chapter is eligible to apply to have its
name included on the List if:
(1) The organization is established in
the United States;
(2) The organization will provide a
minimum of 50 hours per year of pro
bono legal services to aliens at each
immigration court location where the
organization intends to be included on
the List, in cases where an attorney of
the organization files a Form EOIR–28
Notice of Entry of Appearance;
(3) The organization has on its staff at
least one attorney, as defined in
§ 1292.1(a)(1) of this chapter; and
(4) No attorney who will provide pro
bono legal services on the organization’s
behalf before EOIR is the subject of an
order of disbarment under
§ 1003.101(a)(1) or suspension under
§ 1003.101(a)(2).
(c) Pro bono referral services. A
referral service is eligible to apply to
have its name included on the List at
each immigration court location where
the referral service either refers or plans
to refer cases to attorneys or
organizations that will provide pro bono
legal services to aliens in proceedings
before an immigration judge.
(d) Attorneys. An attorney, as defined
in § 1292.1(a)(1) of this chapter, is
eligible to apply to have his or her name
included on the List if the attorney:
E:\FR\FM\17SEP1.SGM
17SEP1
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules
(1) Is not the subject of an order of
disbarment under § 1003.101(a)(1) or
suspension under § 1003.101(a)(2);
(2) Will provide a minimum of 50
hours per year of pro bono legal services
to aliens at each immigration court
location where the attorney intends to
be included on the List, in cases where
he or she files a Form EOIR–28 Notice
of Entry of Appearance; and
(3) Cannot provide pro bono legal
services through or in association with
an organization or pro bono referral
service described in paragraph (a), (b),
or (c) of this section because:
(i) Such an organization or referral
service is unavailable; or
(ii) The range of services provided by
an available organization(s) or referral
service(s) are insufficient to address the
needs of the community.
■ 6. Revise § 1003.63 to read as follows:
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
§ 1003.63
Applications.
(a) Generally. A form is not required
in order to apply to be included on the
List. To be included on the List, any
organization, pro bono referral service,
or attorney that is eligible under
§ 1003.62 to apply to be included on the
List must file an application with the
Director. Applications must be
submitted in writing and received by
the Director at least 60 days in advance
of the quarterly update in order to be
considered. The application must:
(1) Establish by clear and convincing
evidence that the applicant qualifies to
be on the List pursuant to § 1003.61(c);
(2) Specify how the organization, pro
bono referral service, or attorney wants
its name to be set forth on the List;
(3) Identify each immigration court
location where the organization, pro
bono referral service, or attorney
provides, or plans to provide, pro bono
legal services;
(4) Include on the envelope the
notation ‘‘Application for List of Pro
Bono Legal Service Providers’’; and
(5) Include proof of service, as defined
in § 1003.13, on the court administrator
for each immigration court location
where the organization, pro bono
referral service, or attorney will provide
pro bono legal services.
(b) Organizations. An organization,
whether recognized or not under
§ 1292.2, must submit with its
application a declaration signed by an
authorized officer of the organization
that states under penalty of perjury:
(1) That it will provide annually at
least 50 hours of pro bono legal services
to aliens in removal or other
proceedings before each immigration
court location identified in its
application;
VerDate Sep<11>2014
18:21 Sep 16, 2014
Jkt 232001
(2) That every attorney who will
provide pro bono legal services before
EOIR on behalf of the organization:
(i) 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
(ii) is not under any order suspending,
enjoining, restraining, disbarring, or
otherwise restricting him or her in the
practice of law;
(3) That no attorney or accredited
representative who will provide pro
bono legal services before EOIR on
behalf of the organization is the subject
of an order of disbarment under
§ 1003.101(a)(1) or suspension under
§ 1003.101(a)(2); and,
(4) Any specific limitations it has in
providing pro bono legal services (e.g.,
not available to assist detained aliens or
aliens with criminal convictions, or
available for asylum cases only).
(c) Pro bono referral services. A pro
bono referral service must submit with
its application a declaration signed by
an authorized officer of the referral
service that states under penalty of
perjury:
(1) That it will offer its referral
services to aliens in removal or other
proceedings before each immigration
court location identified in its
application; and,
(2) Any specific limitations it has in
providing its pro bono referral services
(e.g., not available to assist detained
aliens or aliens with criminal
convictions, or available only for
asylum cases only).
(d) Attorneys. An attorney must
submit with his or her application a
declaration that states under penalty of
perjury:
(1) That he or she will provide
annually at least 50 hours of pro bono
legal services to aliens in removal or
other proceedings before each
immigration court location identified in
his or her application;
(2) Any specific limitations the
attorney has in providing pro bono legal
services (e.g., not available to assist
detained aliens or aliens with criminal
convictions, or available for asylum
cases only);
(3) A description of the good-faith
efforts he or she made to provide pro
bono legal services through an
organization or pro bono referral service
described in paragraph (a), (b), or (c) of
§ 1003.62 to aliens appearing before
each immigration court location listed
in the application;
(4) An explanation that any such
organization or referral service is
unavailable or that the range of services
PO 00000
Frm 00013
Fmt 4702
Sfmt 4702
55671
provided by available organization(s) or
referral service(s) are insufficient to
address the needs of the community;
(5) The bars of the highest courts of
the states, possessions, territories, or
commonwealths of the United States, or
the District of Columbia, in which he or
she is eligible to practice law, and that
he or she is a member in good standing
of each, including the attorney’s bar
number, if any;
(6) That he or she is not under any
order suspending, enjoining, restraining,
disbarring, or otherwise restricting him
or her in the practice of law; and
(7) That he or she is not the subject
of an order of disbarment under
§ 1003.101(a)(1) or suspension under
§ 1003.101(a)(2).
(e) Applications approved before
[insert effective date of final rule].
Providers whose applications to be
included on the List were approved
before [effective date of final rule to be
inserted] must file an application under
this section as follows: Organizations
and pro bono referral services, within
one year of [effective date of final rule
to be inserted]; attorneys, within six
months of [effective date of final rule to
be inserted]. The names of providers
who do not file an application as
required by this paragraph shall be
removed from the List following
expiration of the application time
period, the removal of which will be
reflected no later than in the next
quarterly update.
(f) Notice and comments. (1) Public
notice and comment. The names of the
applicants, whether organizations, pro
bono referral services, or individuals,
meeting the regulatory requirements to
be included on the List shall be publicly
posted for 15 days after receipt of the
applications by the Director, and upon
request a date stamped copy of each
application shall be made available for
review. Any individual may forward to
the Director comments or a
recommendation for approval or
disapproval of an application within 15
days from the last date the name of the
applicant is publicly posted. The
commenting party shall also include
proof of service of a copy of any such
comment or recommendation on the
subject organization, pro bono referral
service, or individual, in accordance
with the definition of ‘‘service’’
described in § 1003.13.
(2) Response. The applicant has 15
days to respond from the date of service
of the comment. All responses must be
filed with the Director and include
proof of service of a copy of such
response on the commenting party, in
accordance with the definition of
‘‘service’’ described in § 1003.13.
E:\FR\FM\17SEP1.SGM
17SEP1
55672
■
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules
7. Revise § 1003.64 to read as follows:
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
§ 1003.64 Approval and denial of
applications.
(a) Authority. The Director in his
discretion shall have the authority to
approve or deny an application to be
included on the List of Pro Bono Legal
Service Providers. The Director may
request additional information from the
applicant to determine whether the
applicant qualifies to be included on the
List.
(b) Decision. The applicant shall be
notified of the decision in writing. The
written notice shall be served in
accordance with the definition of
‘‘service’’ described in § 1003.13. The
written notice shall be served on the
applicant at the address provided on the
application unless the applicant
subsequently provides a change of
address pursuant to § 1003.66.
(1) Denials. If the application is
denied, the applicant shall be given a
written explanation of the grounds for
such denial, and the decision shall be
final. Such denial shall be without
prejudice to file another application at
any time after the next quarterly
publication of the List.
(2) Approval and continuing
qualification. If the application is
approved, the applicant’s name will be
included on the List at the next
quarterly update. Every three years from
the date of approval, a provider must
file with the Director a declaration,
under penalty of perjury, stating that the
provider remains qualified to be
included on the List under paragraphs
(a), (b), (c), or (d) of § 1003.62. The
declaration must include alien
registration numbers of clients in whose
cases the provider rendered pro bono
legal services under §§ 1003.62(a)(1),
(b)(2), or (d)(2), representing at least 50
hours of pro bono legal services each
year since the provider’s most recent
such declaration, or since the provider
was included on the List, whichever
was more recent. If a provider fails to
timely file the declaration or declares
that it is no longer qualified to be
included on the List, the provider’s
name will be removed from the List at
the next quarterly update. Failure to file
a declaration within the applicable time
period does not prohibit the filing of a
new application to be included on the
List.
■ 8. Revise § 1003.65 to read as follows:
§ 1003.65
List.
Removal of a provider from the
(a) Automatic removal. If the Director
determines that an attorney on the List
is the subject of a final order of
disbarment under § 1003.101(a)(1), or an
VerDate Sep<11>2014
18:21 Sep 16, 2014
Jkt 232001
order of suspension under
§ 1003.101(a)(2), then the Director shall:
(1) Remove the name of the attorney
from the List no later than at the next
quarterly update; and,
(2) Notify the attorney of such
removal in writing, at the last known
address given by the provider.
(b) Requests for removal.
(1) Any provider may, at any time,
submit a written request to have the
provider’s name removed from the List.
The written request may include an
explanation for the voluntary removal.
Upon such written request, the name of
the provider shall be removed from the
List, and such removal will be reflected
no later than in the next quarterly
update.
(2) Any provider removed from the
List at the provider’s request may seek
reinstatement to the List upon written
notice to the Director. Any request for
reinstatement must include a new
declaration of eligibility, as set forth
under § 1003.63(b), (c) or (d).
Reinstatement to the List is at the sole
discretion of the Director. Upon the
Director’s approval of reinstatement, the
provider’s name shall be included on
the List no later than in the next
quarterly update. Reinstatement to the
List does not affect the requirement
under § 1003.64(b)(2) that a provider
submit a new declaration of eligibility
every three years from the date of the
approval of the original application to
be included on the List.
(c) EOIR inquiry in response to
complaints. If EOIR receives complaints
that a particular provider on the List
may no longer be accepting new pro
bono clients, the Director may send a
written inquiry to a provider noting that
EOIR has received complaints with
regard to the provider’s acceptance of
pro bono clients and allowing an
opportunity for the provider to state
whether the provider is continuing to
comply with the regulations in this
subpart or, if appropriate, whether the
provider wishes to request voluntary
removal from the List as provided in
paragraph (b). The Director may remove
a provider from the List for failure to
respond to a written inquiry issued
under this paragraph within 30 days or
such additional time period stated by
the Director in the written inquiry.
(d) Procedures for removing providers
from the List. The following provisions
apply in cases not covered by
paragraphs (a), (b) or (c).
(1) Grounds. A provider shall be
removed from the List if it, he, or she:
(i) Fails to comply with § 1003.66;
(ii) Has filed a false declaration in
connection with an application filed
pursuant to § 1003.63;
PO 00000
Frm 00014
Fmt 4702
Sfmt 4702
(iii) Improperly uses the List
primarily to advertise or solicit clients
for compensated legal services; or,
(iv) Fails to comply with any and all
other requirements of this subpart.
(2) Notice. If the Director determines
that a provider falls within one or more
of the enumerated grounds under
paragraph (d)(1) of this section, the
Director shall promptly notify the
provider in writing, at the address last
provided to the Director by the provider,
of the Director’s intention to remove the
name of the provider from the List.
(3) Response. The provider may
submit a written answer within 30 days
from the date the notice is served, as
described in § 1003.13. The provider
must establish by clear and convincing
evidence that the provider continues to
meet the qualifications for inclusion on
the List, by declaration under penalty of
perjury as to the provider’s continued
compliance with eligibility
requirements under this subchapter,
which must include alien registration
numbers of clients in whose cases the
provider rendered pro bono legal
services under § 1003.62(a)(1), (b)(2), or
(d)(2), representing at least 50 hours of
pro bono services each year since the
provider’s most recent declaration
under § 1003.64(b)(2), or since the
provider was included on the List,
whichever was more recent.
(4) Decision. If, after consideration of
any response submitted by the provider,
the Director determines that the
provider is no longer qualified to remain
on the List, the Director shall:
(i) Remove the name of the provider
from the List no later than in the next
quarterly update; and
(ii) Notify the provider of such
removal in writing, at the address last
provided to the Director by the provider.
(5) Disciplinary Action. Removal from
the List pursuant to § 1003.65(a), (b), (c)
or (d) shall be without prejudice to the
authority to discipline a practitioner
under EOIR’s rules and procedures for
professional conduct for practitioners
listed in 8 CFR part 1003, subpart G.
■ 9. Add § 1003.66, to read as follows:
§ 1003.66
Changes in address or status.
All entities or persons with a pending
application under this subpart, and all
providers on the List, are under a
continuing obligation to notify the
Director, in writing or by whatever
electronic notification process approved
by the Director, within ten business
days, of any:
(a) Change of address;
(b) Change of telephone number;
(c) Change in eligibility under
§ 1003.62;
E:\FR\FM\17SEP1.SGM
17SEP1
Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules
(d) Change regarding specific
limitations to providing pro bono legal
services under § 1003.63;
(e) Receipt of an order of disbarment
under § 1003.101(a)(1) or suspension
under § 1003.101(a)(2) by the provider
(if an attorney), or by an attorney or
representative providing pro bono
services before EOIR on behalf of the
provider; or
(f) Change in professional status,
including bar membership or any order
suspending, enjoining, restraining,
disbarring, or otherwise restricting the
provider (if an attorney), or an attorney
or representative providing pro bono
services before EOIR on behalf of the
provider, in the practice of law.
PART 1240—PROCEEDINGS TO
DETERMINE REMOVABILITY OF
ALIENS IN THE UNITED STATES
10. The authority citation for part
1240 continues to read as follows:
Authority: 8 U.S.C. 1103, 1182, 1186a,
1224, 1225, 1226, 1227, 1251, 1252 note,
1252a, 1252b, 1362; secs. 202 and 203, Pub.
L. 105–100 (111 Stat. 2160, 2193); sec. 902,
Pub. L. 105–277, (112 Stat. 2681).
11. In § 1240.10, revise paragraphs
(a)(2) and (a)(3), to read as follows:
■
Hearing.
(a) * * *
(2) Advise the respondent of the
availability of pro bono legal services for
the immigration court location at which
the hearing will take place, and
ascertain that the respondent has
received a list of such pro bono legal
service providers.
(3) Ascertain that the respondent has
received a copy of appeal rights.
*
*
*
*
*
§ 1240.32
[Amended]
12. Amend § 1240.32 in paragraph (a)
by removing the words ‘‘Government,
and of the availability of free legal
services programs qualified under 8 CFR
part 1003 and organizations recognized
pursuant to § 1292.2 of this chapter
located in the district where his or her
exclusion hearing is to be held; and
shall ascertain that the applicant has
received a list of such programs’’ and
adding, in their place, the words
‘‘Government; advise him or her of the
availability of pro bono legal services for
the immigration court location at which
the hearing will take place, and
ascertain that he or she has received a
list of such pro bono legal service
providers’’.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
■
§ 1240.48
[Amended]
13. Amend § 1240.48 in paragraph (a)
by removing the words ‘‘free legal
■
VerDate Sep<11>2014
18:21 Sep 16, 2014
Jkt 232001
PART 1241—APPREHENSION AND
DETENTION OF ALIENS ORDERED
REMOVED
14. The authority citation for part
1241 continues to read as follows:
■
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C.
1103, 1182, 1223, 1224, 1225, 1226, 1227,
1231, 1251, 1253, 1255, 1330, 1362; 18 U.S.C.
4002, 4013(c)(4).
■
§ 1240.10
services programs qualified under 8 CFR
part 1003 and organizations recognized
pursuant to § 1292.2 of this chapter,
located in the district where the
deportation hearing is being held;
ascertain that the respondent has
received a list of such programs’’ and
adding, in their place, the words ‘‘pro
bono legal services for the immigration
court location at which the hearing will
take place; ascertain that the respondent
has received a list of such pro bono legal
service providers’’.
§ 1241.14
[Amended]
15. Amend § 1241.14 in paragraph
(g)(3)(i) by removing the words ‘‘a list of
free legal service providers,’’ and
adding, in their place, the words ‘‘the
List of Pro Bono Legal Service Providers
for the immigration court at which the
hearing is being held’’.
■
Dated: August 4, 2014.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2014–21686 Filed 9–16–14; 8:45 am]
BILLING CODE 4410–30–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2014–0625; Directorate
Identifier 2014–NM–044–AD]
RIN 2120–AA64
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
We propose to adopt a new
airworthiness directive (AD) for certain
Bombardier, Inc. Model CL–600–2A12
(CL–601), and CL–600–2B16 (CL–601–
3A, CL–601–3R, and CL–604 Variants)
airplanes. This proposed AD was
prompted by a report of an aft
equipment bay fire due to chafing and
subsequent arcing of the integrated
drive generator (IDG) power cables.
Additionally, we have received several
SUMMARY:
Frm 00015
Fmt 4702
reports of broken support brackets of the
hydraulic lines. This proposed AD
would require a one-time inspection of
the IDG power cables for chafing, and
for any cracked or broken support
bracket of the hydraulic line; and
corrective actions if necessary. We are
proposing this AD to detect and correct
broken support brackets of the hydraulic
lines, which could result in inadequate
clearance between the IDG power cables
and hydraulic lines and chafing of the
IDG power cables, and consequent high
energy arcing and an uncontrolled fire
in the aft equipment bay.
DATES: We must receive comments on
this proposed AD by November 3, 2014.
ADDRESSES: You may send comments by
any of the following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: (202) 493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC 20590.
• Hand Delivery: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
For service information identified in
this proposed AD, contact Bombardier,
ˆ
Inc., 400 Cote Vertu Road West, Dorval,
´
Quebec H4S 1Y9, Canada; telephone
514–855–5000; fax 514 855–7401; email
thd.crj@aero.bombardier.com; Internet
https://www.bombardier.com. You may
view this referenced service information
at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue SW.,
Renton, WA. For information on the
availability of this material at the FAA,
call 425–227–1221.
Examining the AD Docket
Airworthiness Directives; Bombardier,
Inc. Airplanes
PO 00000
55673
Sfmt 4702
You may examine the AD docket on
the Internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2014–
0625; or in person at the Docket
Management Facility between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. The AD docket
contains this proposed AD, the
regulatory evaluation, any comments
received, and other information. The
street address for the Docket Operations
office (telephone (800) 647–5527) is in
the ADDRESSES section. Comments will
be available in the AD docket shortly
after receipt.
FOR FURTHER INFORMATION CONTACT:
Assata Dessaline, Aerospace Engineer,
E:\FR\FM\17SEP1.SGM
17SEP1
]]>Agencies
[Federal Register Volume 79, Number 180 (Wednesday, September 17, 2014)]
[Proposed Rules]
[Pages 55662-55673]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-21686]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1003, 1240, and 1241
[EOIR Docket No. 164P; AG Order No. 3463-2014]
RIN 1125-AA62
List of Pro Bono Legal Service Providers for Aliens in
Immigration Proceedings
AGENCY: Executive Office for Immigration Review, Justice.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This rule proposes to amend 8 CFR parts 1003, 1240, and 1241
by changing the name of the ``List of Free Legal Services Providers''
to the ``List of Pro Bono Legal Service Providers.'' The rule also
would enhance the eligibility requirements for organizations, private
attorneys, and referral services to be included on the List of Pro Bono
Legal Service Providers (List).
DATES: Electronic comments must be submitted and written comments must
be postmarked on or before November 17, 2014. The electronic Federal
Docket Management System at www.regulations.gov will accept electronic
comments submitted prior to midnight Eastern Time at the end of that
day.
ADDRESSES: Please submit written comments to Jeff Rosenblum, General
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2600, Falls Church, Virginia, 20530. To ensure proper handling,
please reference RIN 1125-AA62 or EOIR docket number 164P on your
correspondence. You may view an electronic version and provide comments
via the Internet by using the www.regulations.gov comment form for this
regulation. When submitting comments electronically, you must include
RIN 1125-AA62 in the subject box. See Section I of the SUPPLEMENTARY
INFORMATION section for more information.
FOR FURTHER INFORMATION CONTACT: Jeff Rosenblum, General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2600, Falls Church, Virginia 20530, telephone (703) 305-0470 (not a
toll-free call).
SUPPLEMENTARY INFORMATION:
I. Public Participation--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 by
appointment, please see the FOR FURTHER INFORMATION CONTACT section.
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule. Comments that will provide the most assistance to the Department
of Justice will reference a specific portion of the rule, explain the
reason for any recommended change, and include data, information, or
authority that support the recommended change.
For access to the electronic docket to read background documents or
comments received, go to www.regulations.gov. Submitted comments may
also be inspected at the Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2600, Falls Church, Virginia 20530. To make an
appointment, please contact EOIR at (703) 305-0470 (not a toll-free
call).
II. Explanation of Proposed Changes
Aliens who are placed in removal proceedings pursuant to section
240 of the Immigration and Nationality Act (Act or INA), or who seek
asylum under section 208 of the Act (whether or not in removal
proceedings), must be provided with a list of persons who have
indicated their availability to represent aliens on a pro bono basis.
See INA 208(d)(4)(B) (relating to asylum proceedings), and INA
239(a)(1)(E), (b)(2) (relating to removal proceedings). In order to
meet this statutory obligation, the Executive Office for Immigration
Review (EOIR) publishes the Free Legal Services Providers List
(List).\1\ The regulations governing the List were promulgated on
February 28, 1997, at 62 FR 9071, and are found at 8 CFR 1003.61-
1003.65. The List is organized by immigration court location; \2\ for
each location, the List provides the names of private attorneys and
non-profit organizations aliens in proceedings may contact for free
legal services. At each location, aliens are given the portion of the
List with the providers for that location. The complete List is posted
on the EOIR Web site.\3\ See www.usdoj.gov/eoir/probono/states.htm.
---------------------------------------------------------------------------
\1\ EOIR, a component of the Department of Justice, includes the
immigration judges and the Board of Immigration Appeals. The
immigration judges, who are appointed by the Attorney General,
conduct removal proceedings and other immigration proceedings,
resolving questions such as whether an alien is inadmissible to or
deportable from the United States, and whether he or she qualifies
for relief from removal.
\2\ The term ``immigration court location,'' as used in this
proposed rule, refers both to the immigration courts and to
facilities where hearings may be conducted, but where no EOIR
personnel have a permanent duty station.
\3\ In addition, the Department of Homeland Security (DHS)
provides a modified version of EOIR's List to asylum applicants
before that agency, and DHS provides EOIR's List to aliens in
certain other instances as well. As explained in more detail below,
this proposed rule does not limit DHS's ability to provide aliens
with EOIR's List or with DHS's modified versions of the List.
---------------------------------------------------------------------------
The List is central to EOIR's efforts to improve the amount and
quality of representation before its adjudicators, and it is an
essential tool to inform aliens in proceedings before EOIR of available
pro bono legal services. However, as explained further below,
[[Page 55663]]
concerns have been expressed to EOIR by government sources and the
public about problems with the List, and EOIR believes it is important
to improve the functioning of the List. Therefore, the Department of
Justice (Department) is proposing to amend the regulations governing
the List, as described further below.
A. ``Pro Bono Legal Service Providers''
As the List is intended to provide aliens access to pro bono
representation, this proposed rule replaces the term ``free legal
service providers'' with ``pro bono legal service providers.''
Replacing the word ``free'' with the term ``pro bono'' reflects the
relevant statutory language (see INA 208(d)(4)(B), 239(a)(1)(E),
239(b)(2)), describes more accurately the nature of the services
provided, and will improve the integrity of the List. Further, removing
the word ``free'' will clarify that entities and private attorneys on
the List are not necessarily available to work free of charge for every
alien regardless of the alien's financial means or the type of legal
work involved. Rather, use of the term ``pro bono'' indicates that such
services are for the public good, e.g., to help ensure qualified
representation for those indigent aliens who do not have sufficient
means to hire a private attorney.
B. Definition of ``Pro Bono''
This proposed rule also sets forth a definition of the term ``pro
bono'' to ensure that entities or private attorneys that want to be
included on the List understand the kind of services expected from them
if they are included on the List. The proposed rule defines ``pro bono
legal services'' at Sec. 1003.61(a)(2) as ``those uncompensated legal
services performed for indigent aliens or the public good without any
expectation of either direct or indirect remuneration, including
referral fees (other than filing fees or photocopying and mailing
expenses), although a representative may be regularly compensated by
the firm, organization, or pro bono referral service with which he or
she is associated.'' This definition not only reflects the spirit of
pro bono representation, but is also consistent with the common law
understanding of the terms pro bono and pro bono publico. See, e.g.,
Black's Law Dictionary (9th ed. 2009).
Use of the term pro bono indicates that work performed should be
for the good of the public from the outset and a commitment to continue
such representation throughout the duration of the administrative
proceeding before an immigration judge. It is inappropriate for legal
service providers to subsequently count as ``pro bono'' those services
provided to paying clients who fall delinquent in paying attorney fees.
In addition, EOIR recognizes that some organizations charge reduced or
nominal fees in an attempt to provide services to aliens who cannot
afford private attorneys but have a modest ability to pay. However,
services provided for a reduced or nominal fee do not constitute ``pro
bono'' services under the proposed rule. Although services provided for
reduced or nominal fees are not ``pro bono'' services, organizations
that charge such fees to some of their clients are not prohibited from
inclusion on the List. As set forth in Sec. 1003.62(a) and (b), such
an organization can be included on the List if it provides a requisite
amount of pro bono legal services and meets the other requirements for
inclusion, even though it charges fees to some of its other clients.\4\
---------------------------------------------------------------------------
\4\ Under this proposed rule, an organization or attorney on the
List must provide 50 hours of pro bono legal services per year in
cases in front of each immigration court location on its
application. See proposed Sec. Sec. 1003.62, 1003.63. This
requirement is discussed further below.
---------------------------------------------------------------------------
As the foregoing definition reflects, this proposed rule also
adopts reference to ``pro bono referral services'' in place of the
current reference to ``bar associations.'' There is no need to
specifically list bar associations since any pro bono programs offered
by them would either be in the form of a pro bono referral service or
an organization that is eligible to be included on the List under
proposed Sec. 1003.62(a), (b), or (c). Adopting the term ``pro bono
referral services'' also broadens eligibility for inclusion on the List
to referral services that are not administered by a bar association.
C. Proposed Changes to Preserve the Integrity of the List
EOIR has strongly supported various local efforts to provide pro
bono legal services to aliens appearing before the immigration judges,
the Board of Immigration Appeals (Board), and the Office of the Chief
Administrative Hearing Officer (which adjudicates certain immigration-
related civil penalty actions). In April 2000, EOIR established a
national pro bono program to improve the development and coordination
of these services and, in March 2008, EOIR issued formal policy
guidance to immigration judges and immigration court staff on
facilitating pro bono legal services. See ``Office of Legal Access
Programs,'' www.usdoj.gov/eoir/probono/probono.htm; ``Operating
Policies and Procedures Memorandum 08-01: Guidelines for Facilitating
Pro Bono Legal Services,'' Mar. 10, 2008, www.usdoj.gov/eoir/efoia/ocij/oppm08/08-01.pdf (Last visited July 15, 2014]).
EOIR encourages organizations and private attorneys to publicize
their willingness to provide pro bono legal services to aliens
appearing before immigration judges by being included on the List.\5\
The EOIR Committee on Pro Bono, which was formed in response to
Directive 22 of Attorney General Alberto R. Gonzales' ``Measures to
Improve the Immigration Courts and the Board of Immigration Appeals,''
Aug. 9, 2006, https://www.justice.gov/ag/readingroom/ag-080906.pdf (Last
visited July 15, 2014), reviewed issues and concerns regarding the need
for additional safeguards for the List. In its recommendations to
expand and improve EOIR's pro bono programs, the EOIR Committee on Pro
Bono (Committee) recommended that EOIR publish new regulations to
strengthen the requirements for placing organizations and private
attorneys on the List. See ``EOIR to Expand and Improve Pro Bono
Programs,'' Nov. 15, 2007, www.usdoj.gov/eoir/press/07/ProBonoEOIRExpandsImprove.pdf (Last visited July 15, 2014).
Specifically, the Committee recommended that private attorneys not be
included on the List unless they could demonstrate their inability to
provide pro bono legal services through or in association with local
pro bono organizations or referral services. The Committee also
recommended that the List be monitored periodically to ensure that
listed organizations and individuals were indeed providing free legal
services.
---------------------------------------------------------------------------
\5\ For aliens before the Board, EOIR helps to provide pro bono
representation in appropriate cases through the BIA Pro Bono
Project, which is administered by EOIR's Office of Legal Access
Programs. Based on criteria determined by partnering organizations,
EOIR assists in identifying cases appropriate for pro bono
representation. Partnering organizations then work to find pro bono
representatives in those cases. Additional information is available
at https://www.justice.gov/eoir/probono/probono.htm#BIAProBono.
---------------------------------------------------------------------------
Since the creation of the List, EOIR has increasingly received
complaints from numerous government sources and the public that certain
private attorneys may be using the List to advertise or solicit for
paying clients, and do not provide legal representation to a
significant number of aliens on a pro bono basis or for any particular
amount of time. For instance, a private attorney who has declared his
or her willingness to represent indigent aliens on a pro bono basis may
provide pro bono
[[Page 55664]]
representation to only one alien and otherwise cease to provide pro
bono representation. It is, unfortunately, common for aliens who
contact private attorneys on the List to be informed that these
attorneys are not available to accept any more pro bono cases, and are
only available to represent the aliens for a fee. Though there may be
different reasons why attorneys may find themselves unable to accept
new pro bono cases at a particular time, there is reason for concern
that at least some attorneys may not be using the List for its intended
purpose and may be misleading EOIR, the public, and aliens as to their
true willingness and availability to provide pro bono services.
EOIR has not received similar complaints regarding organizations or
pro bono referral services on the List. This may be because, unlike
private attorneys, organizations and pro bono referral services are
primarily non-profit operations and are formed specifically to assist
indigent and low-income individuals. Thus, although there may be
similar potential for abuse, there is less incentive for such entities
to use the List improperly. Further, attorneys and accredited
representatives who provide pro bono services on behalf of
organizations or referral services are typically supervised, unlike
some private attorneys on the List.
Finally, the regulations do not currently require organizations or
private attorneys who are included on the List to represent any minimum
number of indigent aliens on a pro bono basis over a given period of
time. Requiring ``an attorney to accept a specific number or percentage
of cases on a pro bono basis in order to be included on the list of
free legal services providers'' was considered in promulgating the 1997
rule. 62 FR 9072 (Feb. 28, 1997). At that time, EOIR determined that it
was not necessary to include such a requirement. Id. However, the rule
also stated that ``this issue is subject to further review if necessary
to eliminate any abuses.'' Id.
The proposed rule seeks to prevent in five ways the potential for
abuse by all organizations and private attorneys on the List, explained
in greater detail below. First, the proposed rule requires that private
attorneys on the List, and attorneys and accredited representatives
providing pro bono legal services before EOIR on behalf of the
organization on the List, not be subject to an order of disbarment
under Sec. 1003.101(a)(1) or suspension under Sec. 1003.101(a)(2).
Second, the proposed rule provides that attorneys must seek to provide
pro bono legal services through or in association with an organization
or pro bono referral service if possible. Third, it requires every
organization or individual on the List to provide a minimum of 50 pro
bono hours a year in each immigration court location where the provider
intends to be included on the List. Fourth, this proposed rule allows
for and encourages public participation in the application process of
an organization, referral service, or private attorney seeking to be
included on the List. Finally, once a provider's name is included on
the List, the provider must declare under penalty of perjury every
three years that the provider is qualified to remain on the List.
The following is a description of the five ways the proposed rule
seeks to limit the potential for abuse by the organizations and private
attorneys on the List.
1. Professional Conduct Standards
The new eligibility requirements aim to ensure that private
attorneys on the List, and attorneys and accredited representatives who
provide pro bono legal services for organizations on the List, satisfy
EOIR's professional conduct standards.\6\
---------------------------------------------------------------------------
\6\ The standards described in this footnote relate to
compliance with EOIR's professional conduct standards. In addition,
to be eligible for inclusion on the List, or to provide pro bono
services before EOIR on behalf of an organization on the List, an
attorney must comply with state bar association standards.
Specifically, EOIR's regulatory definition of ``attorney'' states
that an attorney cannot be ``under any order suspending, enjoining,
restraining, disbarring, or otherwise restricting him in the
practice of law.'' Sec. 1001.1(f). This includes any such order
issued by a state bar association. In an application to be included
on the List, an attorney must declare, under penalty of perjury,
``[t]hat he or she is not under any order suspending, enjoining,
restraining, disbarring, or otherwise restricting him or her in the
practice of law.'' Proposed Sec. 1003.63(d)(6). An organization
must make such a declaration with respect to every attorney
providing pro bono legal services before EOIR on the organization's
behalf. Proposed Sec. 1003.63(b)(2)(ii).
---------------------------------------------------------------------------
The proposed rule requires that private attorneys on the List, as
well as attorneys and accredited representatives who provide pro bono
services before EOIR on behalf of an organization on the List, not be
subject to an order of disbarment under Sec. 1003.101(a)(1) or
suspension under Sec. 1003.101(a)(2). See proposed Sec. 1003.62(a)(3)
(pertaining to organizations recognized under Sec. 1292.2), (b)(4)
(pertaining to organizations not recognized under Sec. 1292.2), (d)(1)
(pertaining to attorneys). When applying to be included on the List, an
attorney must submit a written declaration that he or she is not the
subject of an order of disbarment under Sec. 1003.101(a)(1) or
suspension under Sec. 1003.101(a)(2). See proposed Sec.
1003.63(d)(7). Similarly, an organization, whether or not recognized,
must submit a written declaration that no attorney or accredited
representative who will provide pro bono legal services on behalf of
the organization before EOIR is the subject of such an order of
disbarment or suspension.
Each of the declarations to be made by private attorneys under
proposed Sec. 1003.63(d), or organizations under proposed Sec.
1003.63(b), must be made ``under penalty of perjury.'' Use of this term
is consistent with language used in the declarations on Forms EOIR-28
(Notice of Entry of Appearance as Attorney or Representative Before the
Immigration Court) and EOIR-27 (Notice of Entry of Appearance as
Attorney or Representative Before the Board of Immigration Appeals),
which must be signed and filed each time an attorney or representative
enters his or her appearance in a matter before the immigration judge
or the Board. See Sec. 1003.17(a) (requiring the filing of Form EOIR-
28 with the immigration court); Sec. 1003.2(g)(1) (requiring the
filing of Form EOIR-27 with the Board); Sec. 1003.3(a)(3) (same).
The proposed rule contains no requirement pertaining to other
disciplinary actions. Such actions include public or private censure
under 1003.101(a)(3) and admonition under Sec. 1003.104(c). An
attorney can be included on the List even if he or she was recently
subject to such a disciplinary action, and an organization can be
included on the List even if an attorney or accredited representative
providing pro bono legal services on its behalf before EOIR was
recently subject to such an action.
2. Ability To Provide Pro Bono Legal Services in Association With
Organizations and Referral Services
The new eligibility requirements for private attorneys further aim
to ensure that only those attorneys who are genuinely interested in and
capable of providing pro bono services are included on the List.
Many immigration court locations are in areas with developed pro
bono programs that are sufficiently capable of assessing the legal
claims and financial resources (``intake'' and ``screening'') of large
numbers of aliens in immigration proceedings and coordinating pro bono
representation with local private attorneys. These programs often
provide private attorneys with specialized legal training, ongoing
mentoring, and other assistance in their pro bono cases as a
recruitment incentive. Thus, where sufficient local organizations or
pro
[[Page 55665]]
bono referral programs are available to identify aliens in need of pro
bono legal services, as well as recruit and assist private attorneys
interested in providing these services, private attorneys are able to
provide pro bono services through or in association with such local
organizations or referral programs. In such a situation, there is
little to no need for private attorneys to be included by name on the
List.
However, EOIR recognizes that in some instances, especially for
immigration court locations in rural areas or small cities, private
attorneys may be the only available and willing sources of pro bono
legal services. For instance, some areas may have no pro bono
organizations or may have organizations that lack programs to recruit
and support pro bono attorneys. In addition, some pro bono
organizations offer a limited range of immigration services, and do not
offer referral programs for all types of cases before the immigration
court.
The Department has designed the proposed rule to allow private
attorneys in such circumstances to continue to be included on the List.
Accordingly, this rule proposes to amend Sec. 1003.62(d) to state
that, to be included on the List, an individual attorney must
demonstrate that he or she cannot provide pro bono legal services
through or in association with an organization or referral service
because: (i) Such an organization or referral service is unavailable;
or (ii) the range of services provided by the existing organization(s)
or referral service(s) are insufficient to address the needs of the
community. Under the ``Applications'' section at Sec. 1003.63(d)(3),
an attorney is further required to submit a written declaration that
describes the good-faith efforts he or she made to provide pro bono
legal services through an organization or pro bono referral service at
each immigration court location where the private attorney is willing
to provide pro bono legal services.
3. Minimum Requirement of 50 Pro Bono Hours per Year
This rule proposes a new requirement that, once on the List, an
attorney or organization perform at least 50 hours of pro bono legal
services annually at each immigration court location where the attorney
or organization intends to be included on the List. See proposed Sec.
1003.62(a)(1), (b)(2), (d)(2). This requirement aims to ensure that
only those organizations and private attorneys genuinely interested in
providing pro bono services are included on the List. This requirement
applies to organizations as well as private attorneys. As noted above,
some organizations charge reduced or nominal fees in an attempt to
provide services to aliens who cannot afford private attorney rates but
have a modest ability to pay. However, services provided for a fee--
even a nominal fee--are not pro bono services, and therefore do not
count toward the 50-hour requirement. This requirement does not apply
to pro bono referral services; there is no minimum annual amount of pro
bono legal services that a referral service must provide.
Only pro bono legal services provided in cases before the
immigration court location identified in the attorney's or
organization's application count toward the 50-hour requirement. See
proposed Sec. 1003.63(a)(3), (b)(1), (d)(1). If an attorney or
organization identifies more than one immigration court location, then
the attorney or organization must provide at least 50 hours of pro bono
legal services in cases before each location. For instance, a provider
who seeks to be listed as providing pro bono services before the
Arlington Immigration Court and the Baltimore Immigration Court must
provide 50 hours of pro bono services before the Arlington Immigration
Court and 50 hours of pro bono services before the Baltimore
Immigration Court each year. This is intended to ensure, to the maximum
extent possible, that attorneys and organizations listed as available
to provide pro bono legal services at a particular immigration court
location are actually able to provide pro bono services at that
location.\7\ However, a provider is not required to provide 50 hours of
in-court pro bono service per year. Rather, all time spent providing
pro bono legal services in cases before a particular immigration court
location, including out-of-court preparation time, counts toward the
50-hour requirement.
---------------------------------------------------------------------------
\7\ Pro bono legal services provided before the Board do not
count toward the 50-hour requirement. As noted in footnote 5, EOIR
assists in providing pro bono legal services in appropriate
instances through the BIA Pro Bono Project.
---------------------------------------------------------------------------
Due to the new requirement that private attorneys must first seek
to provide pro bono services through an organization or referral
service, the Department does not believe that this 50-hour requirement
will overly burden an individual attorney's ability to provide pro bono
services. The individual attorney might commit to provide any number of
pro bono hours through an organization or referral service on the List.
An individual attorney associated with an organization on the List
would not be required to provide 50 hours per year. Rather, the
organization as a whole would commit to providing at least 50 hours of
pro bono representation per year before each immigration court location
identified in the organization's application.
This 50-hour annual minimum is intended to provide a clear measure
of the amount of pro bono representation that is acceptable in order
for an organization or private attorney to be qualified to be included
on the List. A number of state bar associations and private law firms
use 50 hours as the recommended annual minimum for pro bono work and
this number is also found in the American Bar Association's (ABA) Model
Rules of Professional Conduct.\8\ The Department believes this
prevailing standard strikes the balance between private attorneys whose
primary practice is the business of fee-generating clients but who are
genuinely interested in providing pro bono services, and organizations
that are primarily formed to assist indigent and low-income
individuals. The proposed rule also provides that failure to provide
the 50-hour annual minimum subjects attorneys and organizations to
removal from the List under new Sec. 1003.65.
---------------------------------------------------------------------------
\8\ ABA Rule 6.1 (Voluntary Pro Bono Publico Service) states
that ``[a] lawyer should aspire to render at least (50) hours of pro
bono publico legal services per year.''
---------------------------------------------------------------------------
The Department also recognizes, however, that a particular minimum
may be burdensome for some or result in a de facto maximum standard
that undermines the purpose of the List. Accordingly, the Department is
soliciting comments on whether this 50-hour annual minimum is an
acceptable measure of how much pro bono representation an organization
or private attorney should provide in order to remain on the List. In
particular, the Department welcomes comments on the following
questions:
Question 1. Would a 50-hour annual minimum be too demanding for
private attorneys who manage a fee-generating practice, but also want
to engage in immigration-related pro bono work and cannot provide pro
bono service through or in association with an organization or referral
service?
Question 2. Conversely, is a 50-hour annual minimum not enough for
organizations that seek to be included on the List?
Question 3. Should the standards for organizations and private
attorneys differ from one another in any other way? For example, should
the rule require that each attorney or accredited representative
performing legal services on behalf of an organization perform a
certain amount of pro bono work per year, as opposed to requiring that
the
[[Page 55666]]
organization as a whole perform a certain amount of work?
Question 4. Are there alternative standards that would be more
appropriate measures of the level of pro bono representation that an
organization or a private attorney should provide in order to be
included on the List, e.g., the number of cases accepted or the types
of cases accepted?
4. Continuing Certification
This proposed rule also would require at Sec. 1003.64(b)(2) that,
every three years from the date the application to be included on the
List is approved, each provider must declare that the provider
continues to be qualified to remain on the List under paragraphs (a),
(b), (c), or (d) of Sec. 1003.62. As part of the declaration, the
provider must include alien registration numbers of clients in whose
cases the provider rendered pro bono legal services under EOIR's
regulations, representing at least 50 hours of pro bono legal services
each year since the provider's most recent such declaration, or since
the provider was included on the List, whichever was more recent. This
continuing certification puts a reasonable responsibility on providers
to keep EOIR informed of their willingness to provide pro bono legal
services and their qualifications to be included on the List. The
current rule provides no means by which EOIR remains informed that
providers continue to provide pro bono legal services once their names
are included on the List. Unless EOIR is specifically notified that a
provider is no longer providing pro bono legal services, it is
difficult for EOIR to ascertain whether a provider should remain on the
List. Under the proposed rule, however, EOIR will remove a provider
from the List at the next quarterly update if the provider fails to
comply with the continuing certification requirement.\9\
---------------------------------------------------------------------------
\9\ As described further in section II-G of this preamble, a
provider can be removed from the List in other circumstances as
well. Specifically, as provided in Sec. 1003.65, a provider may be
removed if subject to automatic removal, if the provider submits a
request for removal, if the provider fails to answer an EOIR inquiry
in response to complaints, or if, following proceedings initiated by
the EOIR Director, the EOIR Director determines that the provider is
no longer qualified to remain on the List.
---------------------------------------------------------------------------
For providers whose applications to be included on the List are
approved before the date of publication of the final rule, a new
application must be filed in compliance with the new qualification and
eligibility requirements set forth in this rule as follows:
organizations and pro bono referral services, within one year of the
date of publication of the final rule; attorneys, within six months of
the date of publication of the final rule. See proposed Sec.
1003.63(e). These time periods strike a balance between allowing both
providers and EOIR sufficient time to phase in these new requirements
and addressing the public's need for an updated list of available,
local pro bono legal service providers. The time period for attorneys
is shorter than for organizations and pro bono referral services
because, as noted above, the complaints EOIR has received primarily
relate to attorneys. While the List already comprises well over 100
providers, the allotted time periods should be sufficient for these
providers to reapply and be subject to the 15-day notice and comment
period under Sec. 1003.63(f).
5. Public Participation
Another means by which the proposed rule aims to improve the
integrity of the List is by engaging the public in the application
process under Sec. 1003.63(f). The proposed rule requires EOIR to
publicly post for a 15 day period the names of applicants, whether
organizations, pro bono referral services, or individuals, who meet the
regulatory requirements to provide pro bono services to aliens in
proceedings in order to allow the public an opportunity to send
comments to EOIR and the applicant. The names of applicants will be
posted on EOIR's Web site, and may also be posted at the immigration
court location where the applicant intends to provide pro bono
services. Under the proposed rule, any individual or organization may
forward its comments or recommendations for approval or disapproval of
the publicly available applications to the Director. The rule will
require that such comments also be served on the applicant so that the
applicant has an opportunity to respond.
D. Improper Use of the List To Solicit or Advertise for Paying Clients
This proposed rule also states, at Sec. 1003.65(d)(1)(iii), that a
provider shall be removed from the List for improperly using the List
for the primary purpose of soliciting, or advertising to, potential
paying clients since doing so is clearly contrary to the List's
intended purpose. Current regulations do not explicitly impose a
removal requirement for use of the List for these purposes.
Unfortunately, EOIR has received numerous complaints that aliens who
contact private attorneys on the List are commonly informed that the
private attorneys are not available to accept any pro bono cases and
are only available to represent the aliens for a fee. As noted above,
though there may be different reasons why attorneys are not able to
accept additional pro bono cases at a particular time, this gives rise
to concerns that at least some private attorneys may be using the List
as free, government-supported advertising for fee-generating services.
This may be misleading to aliens who would not have otherwise contacted
the private attorney and who may also mistakenly believe that private
attorneys on the List are in some manner endorsed by the government.
These issues are of particular concern as aliens in immigration
proceedings are often unfamiliar with the legal system in the United
States and may have limited English proficiency.
Such practice not only degrades the integrity of the List, but may
also violate Sec. 1003.102(f)(1),\10\ state bar rules or the ABA's
Model Rules of Professional Conduct.\11\ Use of the List by a private
attorney to induce aliens into contacting the attorney for pro bono
legal services when these are not commonly provided may also raise
questions about whether such conduct might amount to impermissible
solicitation by the private attorney for fee-generating legal services.
Improperly soliciting clients is grounds for discipline under Sec.
1003.102(d) and is prohibited by various state bar rules, and the ABA's
Model Rules. In order to safeguard the integrity of the List and
promote aliens' interests in obtaining pro bono legal services, Sec.
1003.65(d)(1)(iii) of the proposed rule states that a provider is
subject to removal from the List for improperly using it primarily to
advertise for or solicit clients for compensated legal services.
Additionally, Sec. 1003.65(d)(5) states that removal from the list
pursuant to Sec. 1003.65(d)(1)(iii) shall be without prejudice to the
authority to discipline an attorney or representative under EOIR's
rules and procedures for
[[Page 55667]]
professional conduct for practitioners listed in part 1003, subpart G.
---------------------------------------------------------------------------
\10\ Under Sec. 1003.102(f), a practitioner is subject to
disciplinary action by EOIR if he or she ``[k]nowingly or with
reckless disregard makes a false or misleading communication about
his or her qualifications or services. A communication is false or
misleading if it: (1) Contains a material misrepresentation of fact
or law, or omits a fact necessary to make the statement considered
as a whole not materially misleading. . . .''
\11\ Most, if not all, states have a rule similar to ABA Model
Rule 7.1 (Communications Concerning A Lawyer's Services), which
states that: ``[A] lawyer shall not make a false or misleading
communication about the lawyer or the lawyer's services. A
communication is false or misleading if it contains a material
misrepresentation of fact or law, or omits a fact necessary to make
the statement considered as a whole not materially misleading.''
---------------------------------------------------------------------------
E. Requesting Removal From the List
The Department recognizes that circumstances may arise where an
individual attorney or organization on the List may legitimately be
unable to continue accepting additional pro bono cases for a certain
period, such as a full case load or reaching the annual limitation on
pro bono hours by an attorney practicing in a law firm. In that
instance, the provider can request removal from the List as set forth
in Sec. 1003.65(b)(1). Under Sec. 1003.65(b)(2), any provider granted
removal from the List may thereafter seek reinstatement upon written
notice and submission of a new eligibility declaration, as specified in
section 1003.63(b), (c), or (d). However, reinstatement, like initial
inclusion, is subject to the discretion of the Director. Also,
reinstatement will not affect the continuing qualification requirement
set forth in Sec. 1003.64(b)(2), which requires providers to submit a
new declaration of eligibility every three years from the date of the
original application's approval.
F. Available Services From the Pro Bono Provider
The proposed rule also requires at Sec. 1003.63 that when applying
to be included on the List, providers specify whether there are any
limitations on the pro bono legal services they provide. Currently,
Sec. 1003.63 only requires the application to indicate whether a
provider will represent ``indigent aliens in immigration proceedings
pro bono.'' Sec. 1003.63(d)(1)(ii). Yet, it is common practice for
providers on the List to specify not only if they will represent aliens
in specific types of proceedings (e.g., asylum, VAWA), but to state
other limitations on the services they are willing to provide. For
instance, some providers are unwilling to represent detained aliens.
However, immigration court locations often use the same List for both
detained and non-detained aliens, even though many providers on the
List for a particular court are unwilling or unable to provide pro bono
legal services to detained aliens. This practice can create confusion
and unnecessary frustration for both detained aliens and the local
court.
Accordingly, this proposed rule codifies the already existing
practice of specifying any limitations that may exist on a provider's
willingness to provide pro bono legal services. For example, if a
provider only provides pro bono representation for asylum seekers, or
does not represent aliens in detention, this must be specified.
Sections 1003.65(d)(1)(i) and 1003.66 of the rule also subject a
provider to removal from the List for failing to notify EOIR of any
changes to these limitations. This rule will assist both EOIR in
assembling the List for each immigration court location, as well as
aliens in directing their search.
G. Removal of Providers From the List
The proposed rule transfers from the Chief Immigration Judge to the
Director of EOIR responsibility for maintaining the List, exercising
authority and discretion to approve or deny an application, and
removing a provider from the List. The Director may delegate such
authority to any office or official within EOIR. See proposed Sec.
1003.61(a)(1)(b).
Under the proposed rule, there are four ways a provider can be
removed from the List.
First, under Sec. 1003.65(a), an attorney can be automatically
removed from the List if the Director determines that the attorney is
the subject of an order of disbarment under Sec. 1003.101(a)(1) or
suspension under Sec. 1003.101(a)(2). Automatic removal applies only
to private attorneys, and not to organizations or referral services.
Second, under Sec. 1003.65(b), a provider can voluntarily request
to be removed from the List.
Third, under Sec. 1003.65(c), if EOIR receives complaints that a
particular provider may no longer be providing pro bono services, EOIR
can inquire, in writing, into the provider's pro bono practices. This
will allow the provider to become aware of the receipt of complaints,
and to provide an appropriate response. In appropriate cases, if in
fact the provider is no longer in a position to provide pro bono
services, the provider may request voluntary removal from the List.
Where the provider fails to respond, EOIR may choose to remove the
provider from the List.
Fourth, paragraph (d) of 1003.65 provides formal procedures for
removing a provider from the List in circumstances not covered by
paragraphs (a), (b), or (c) of that section. Under Sec. 1003.65(d),
the Director can initiate procedures to remove a provider from the List
if the Director determines that a provider has: Failed to comply with
Sec. 1003.66 (change in address or status), filed a false declaration
in connection with an application filed pursuant to Sec. 1003.63,
improperly used the List primarily to advertise or solicit clients for
compensated legal services, or failed to comply with any other
requirements under subpart E.
If the Director decides to initiate procedures under Sec.
1003.65(d), the Director must promptly inform the provider in writing
of the Director's intention to remove the provider from the List. The
provider then has 30 days to submit a written response establishing, by
clear and convincing evidence, that the provider continues to meet the
qualifications for inclusion on the List. The response must include a
declaration under penalty of perjury as to the provider's continued
compliance with the eligibility requirements, including individual
examples of specific alien registration numbers of clients in whose
cases the provider rendered pro bono legal services, representing at
least 50 hours of service each year since the provider's most recent
declaration under Sec. 1003.64(b)(2), or since the provider was
included on the List, whichever was more recent. See proposed Sec.
1003.65(d)(3). If the provider submits a response, the Director will
consider the response before deciding whether to remove the provider
from the List. See proposed Sec. 1003.65(d)(4).
H. Additional Revisions
The proposed rule provides additional clarification by rearranging
some of the sections and section headings. For instance, the proposed
rule renames the heading of Sec. 1003.62 as ``Eligibility'' (presently
titled ``Qualifications''), as the new heading better describes the
requirements set forth in that section. Proposed new Sec. 1003.61(c)
(``Qualification'') sets forth the criteria that make an entity or
individual ``qualified'' to be included on the List, including that the
entity or individual meet the eligibility requirements under Sec.
1003.62.
Moreover, the proposed rule specifies at Sec. 1003.64(a) that the
approval and denial of applications to be included on the List are
discretionary determinations by the EOIR Director. The proposed rule
also eliminates the right to appeal to the Board, as currently provided
in Sec. 1003.64 and Sec. 1003.65(a), the denial of an application to
be included on the List, as well as a determination to remove a
provider from the List. These changes are made for two reasons. First,
the List is designed specifically to benefit aliens and not the
providers listed. As application for placement on the List is
completely voluntary and does not confer any rights or benefits to
providers, there are no due process concerns with denying an
application to be included on the List or removing a provider from the
List. Second, applicants to be included on the List, as well as
providers who are removed from
[[Page 55668]]
the List, may reapply through the normal application process, or may
seek reinstatement in the limited circumstance where the Director
previously granted removal at the request of the person or
organization, as set forth in Sec. 1003.65(b)(2).
Finally, with regard to the denial of an application under Sec.
1003.64 or a decision to remove a provider from the List under Sec.
1003.65, the proposed rule states that when serving documents on an
applicant, the Director shall comply with the definition of ``service''
in Sec. 1003.13.
I. Proceedings Before the Department of Homeland Security
As noted above, section 208(d)(4)(B) of the Act requires that
asylum applicants be provided ``a list of persons . . . who have
indicated their availability to represent aliens in asylum proceedings
on a pro bono basis.'' For aliens in asylum proceedings before the
Department of Homeland Security (DHS), U.S. Citizenship and Immigration
Services (USCIS), USCIS currently complies with this requirement by
providing a modified version of EOIR's List. Specifically, USCIS
reorganizes EOIR's List around the geographic area served by each of
USCIS's eight asylum offices; the providers in the area served by each
office are listed under that office. Separately, U.S. Immigration and
Customs Enforcement (ICE) with DHS provides EOIR's List to aliens
subject to expedited removal as aggravated felons who are not lawful
permanent residents, and in certain instances involving detained
juveniles. See Sec. Sec. 236.3(g) (detained juveniles),
238.1(b)(2)(iv) (expedited removal).
The new requirements of this proposed rule are focused solely on
pro bono providers who wish to be included on EOIR's List because they
are providing pro bono legal services before the immigration courts;
these requirements and limitations are not intended to account for pro
bono representation of aliens before DHS.
Thus, this proposed rule does not limit whether and how pro bono
providers may represent aliens before DHS, nor does it limit how DHS
notifies aliens of the availability of pro bono legal services. Under
this proposed rule, DHS can continue to provide EOIR's List to aliens
who are in proceedings before DHS, and can continue to modify the List
as DHS deems appropriate. As explained above, under the proposed rule,
only pro bono services in cases before EOIR, specifically at the
immigration court location or locations identified in a provider's
application, will count toward the 50-hour annual requirement. This is
to ensure, as much as possible, that pro bono providers listed for a
particular immigration court location are actually available to provide
pro bono services there. But the 50-hour annual requirement under this
proposed rule does not apply with respect to providing pro bono
services before DHS. Thus, in modifying EOIR's List, if DHS wishes to
add providers EOIR did not include--for example, those who practice
exclusively or mostly before DHS--then DHS may do so. EOIR recognizes
the importance of its List in assisting DHS to notify aliens of pro
bono legal service providers. The Department believes that this
proposed rule is appropriate in that it responds to concerns regarding
pro bono representation before EOIR, while not limiting DHS's ability
to modify EOIR's List as it chooses, or otherwise to inform aliens of
pro bono legal service providers in the manner DHS deems best.
III. Regulatory Requirements
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities. Some small entities,
such as non-profit organizations or small law offices, will be affected
by this rule. Organizations or private attorneys may be removed from
the List of Pro Bono Legal Service Providers if they are no longer
qualified to be on the List under this proposed rule. Likewise, those
who wish to have their names included on this List will be affected as
they will have to demonstrate their eligibility to have their names
listed. However, application for placement on the List is completely
voluntary and does not confer any rights or benefits on such
organizations or law offices. Placement on the List does not constitute
government endorsement of a particular entity or private attorney; nor
is the List to be used for advertising or soliciting. Rather, the
purpose of the List is to provide aliens notification that these
entities or private attorneys are available to provide uncompensated
legal services without any direct or indirect remuneration (other than
filing fees or photocopying and mailing expenses).
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 also 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 (2 U.S.C. 1531-1535).
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
enterprises to compete with foreign-based enterprises in domestic and
export markets.
Executive Order 12866 and Executive Order 13563 (Regulatory Planning
and Review)
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, therefore, it has not been
reviewed by the Office of Management and Budget. Nevertheless, the
Department certifies that this regulation has been drafted in
accordance with the principles of Executive Order 12866, section 1(b),
and Executive Order 13563. Executive Orders 12866 and 13563 direct
agencies to assess all costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health, and safety effects, distributive impacts,
and equity). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. Additionally, it calls on each agency to
periodically review its existing regulations and determine whether any
should be modified, streamlined, expanded, or repealed so as to make
the agency's regulatory program more effective or less burdensome in
achieving its regulatory objectives.
This rule affects the function and purpose of the Pro Bono Service
Provider List. The benefits of this proposed rule include addressing
long-standing problems of abuse associated with the existing List,
updating the term ``free'' with ``pro bono'' legal services to reflect
the proper statutory language,
[[Page 55669]]
creating a minimum number of annual pro bono hours to ensure proper
compliance with the spirit of the regulation, and creating greater
agency flexibility to remove List participants who do not meet the
minimum regulatory requirements. Further, the rule is intended to
provide aliens with better information regarding the availability of
pro bono representation before the immigration courts, thus benefitting
aliens who appear in proceedings before the courts.
Burdens to the public are applicable only to attorneys and
organizations making a voluntary decision to seek to be included on the
list; these include requirements to apply for inclusion on the List,
maintain updated contact information, perform a minimum of 50 annual
pro bono hours of service at each immigration court location where the
attorney or organization intends to be included on the List, and file a
declaration every three years of continuing eligibility to be on the
List. The regulations provide for removal from the List of a provider
who can no longer meet the requirements of inclusion on the List. The
Department examined these burdens to the public and has determined that
the benefits outweigh the burdens. The Department believes that this
rule will have a minimal economic impact on List participants because
it provides List participants with flexible means of complying with the
rule's requirements. Further, it will not have a substantial economic
impact on Department functions, as the Department is already
maintaining and updating such a List quarterly. The Department believes
this rule will have a positive economic impact for aliens in
proceedings before EOIR who need legal services, as the rule is
intended to preserve the integrity of the List and ensure that
providers on the List are actually available to provide pro bono legal
services.
Executive Order 13132 (Federalism)
This rule will not have substantial direct effects on the States,
on the relationship between the national Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The Department of Justice, Executive Office for Immigration Review
(EOIR), is submitting the following information collection request to
the Office of Management and Budget (OMB) for review and clearance in
accordance with review procedures of the Paperwork Reduction Act of
1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing
regulations, 5 CFR part 1320. The information collection is published
to obtain comments from the public and affected agencies. Written
comments and suggestions are encouraged and will be accepted for 60
days. If you have comments on the estimated public burden, associated
response time, or suggestions, please contact EOIR as noted above.
Comments that will provide the most assistance will evaluate: (1)
Whether the proposed collection of information is necessary for the
proper performance of the functions of the agency, including whether
the information will have practical utility; (2) whether the proposed
collection of information enhances the quality, utility, and clarity of
the information to be collected; (3) the accuracy of the agency's
estimate of the burden of the proposed collection of information,
including the validity of the methodology and assumptions used; and (4)
whether the burden of the collection of information on those who are to
respond can be minimized through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of information.
There is currently no specific form or information collection
instrument associated with this request.\12\ Rather, this rule
implements new eligibility and application requirements in order for an
organization, pro bono referral service, or private attorney to be
included on the List of Free Legal Services Providers (to be renamed,
through this rule, the ``List of Pro Bono Legal Service Providers'').
Organizations and private attorneys that file an application (for which
no specific form is currently required) with EOIR to be included on the
List must demonstrate that they provide, or plan to provide, a minimum
of 50 hours per year of pro bono legal services at each immigration
court location where they intend to be included on the List. Entities
and individuals must indicate ``their availability to represent aliens
in asylum proceedings on a pro bono basis'' (see INA 208(d)(4)(B)) and
``their availability to represent pro bono aliens in proceedings under
section 240'' (see INA 239(b)(2)). They must also indicate whether
there are any limitations on the services they plan to provide and in
which immigration court locations they plan to provide such services.
Private attorneys must demonstrate that they cannot otherwise provide
such services through an organization or pro bono referral service.
Finally, all providers must file a declaration every three years that
they remain eligible to be on the List.
---------------------------------------------------------------------------
\12\ The Department contemplates implementing an electronic/
Internet-based system in the future that may facilitate the
collection of information.
---------------------------------------------------------------------------
As explained in this proposed rule, these additional requirements
will enhance the integrity of the List by ensuring that only those who
genuinely intend to provide pro bono services are included on the List.
These requirements will benefit aliens in need of pro bono legal
services and will also prevent the use of the List primarily for
improper solicitation and advertisement with respect to potential
clients for paid legal services. It is not mandatory for organizations,
pro bono referral services, or private attorneys to be included on the
List in order to represent aliens on a pro bono basis before EOIR.
Placement on the List is completely voluntary and does not confer any
rights or benefits on entities or individuals who are included on the
List. Placement on the List in no way constitutes government
endorsement of a particular entity or private attorney, nor is the List
to be used for advertising or soliciting. Rather, the purpose of the
List is to provide aliens notification that these entities or private
attorneys are available to provide legal services without any direct or
indirect remuneration (other than filing fees or photocopying and
mailing expenses).
EOIR currently uses appropriate information technology to reduce
burden and improve data quality, agency efficiency, and responsiveness
to the public. Under this proposed rule, EOIR would continue to do so
to the maximum extent practicable. EOIR will collect the information
for any person or entity seeking to be included on EOIR's List of Free
Legal Services Providers (to be renamed the ``List of Pro Bono Legal
Service Providers''). Under the current regulation, it is estimated
that it takes a total of 17 hours annually to provide the required
information (50 applicants per year at 20 minutes per application).
[[Page 55670]]
Under the proposed rule, it is estimated that 129 applicants will file
applications each year for the first two years (phase-in period) and
take an average of 30 minutes for each application, resulting in an
estimated total of 65 hours each year. After the first two years, it is
estimated that there will be 93 applicants per year, expending an
average of 30 minutes for each application, resulting in an estimated
total of 47 hours each year. This would be an increase from the current
estimated annual hours by 48 hours annually for the two-year phase-in
period and 30 hours annually for the succeeding years.
List of Subjects
8 CFR Part 1003
Administrative practice and procedure, Aliens, Immigration, Legal
services, Organizations and functions (Government agencies).
8 CFR Part 1240
Administrative practice and procedure, Aliens.
8 CFR Part 1241
Administrative practice and procedure, Aliens, Immigration.
Accordingly, for the reasons stated in the preamble, the Attorney
General proposes amending parts 1003, 1240, and 1241 of chapter V of
title 8 of the Code of Federal Regulations as follows:
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
1. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103,
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231,
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec.
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002;
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.
Sec. 1003.1 Organization, jurisdiction, and powers of the Board of
Immigration Appeals.
0
2. Amend Sec. 1003.1 by removing and reserving paragraph (b)(11).
0
3. Revise the heading for subpart E to read as follows:
Subpart E--List of Pro Bono Legal Service Providers
0
4. Revise Sec. 1003.61 to read as follows:
Sec. 1003.61 General provisions.
(a) Definitions.
(1) Director. Director means the Director of the Executive Office
for Immigration Review (EOIR), pursuant to 8 CFR 1001.1(o), and shall
also include any office or official within EOIR to whom the Director
delegates authority with respect to subpart E of this part.
(2) Pro bono legal services. Pro bono legal services are those
uncompensated legal services performed for indigent aliens or the
public good without any expectation of either direct or indirect
remuneration, including referral fees (other than filing fees or
photocopying and mailing expenses), although a representative may be
regularly compensated by the firm, organization, or pro bono referral
service with which he or she is associated.
(3) Organization. A non-profit religious, charitable, social
service, or similar group established in the United States.
(4) Pro bono referral service. A referral service, offered by a
non-profit group, association, or similar organization established in
the United States that assists persons in locating pro bono
representation by making case referrals to attorneys or organizations
that are available to provide pro bono representation.
(5) Provider. Any organization, pro bono referral service, or
attorney whose name is included on the List of Pro Bono Legal Service
Providers.
(b) Authority. The Director shall maintain a list, known as the
List of Pro Bono Legal Service Providers (List), of organizations, pro
bono referral services, and attorneys qualified under this subpart to
provide pro bono legal services in immigration proceedings. The List,
which shall be updated not less than quarterly, shall be provided to
aliens in removal and other proceedings before an immigration court.
(c) Qualification. An organization, pro bono referral service, or
attorney qualifies to be included on the List if the eligibility
requirements under Sec. 1003.62 and the application procedures under
Sec. 1003.63 are met.
(d) Organizations. Approval of an organization's application to be
included on the List under this subpart is not equivalent to
recognition under Sec. 1292.2 of this chapter. Recognition under Sec.
1292.2 of this chapter does not constitute a successful application for
purposes of the List.
0
5. Revise Sec. 1003.62 to read as follows:
Sec. 1003.62 Eligibility.
(a) Organizations recognized under Sec. 1292.2. An organization
that is recognized under Sec. 1292.2 of this chapter is eligible to
apply to have its name included on the List if:
(1) The organization will provide a minimum of 50 hours per year of
pro bono legal services to aliens at each immigration court location
where the organization intends to be included on the List, in cases
where an attorney or representative of the organization files a Form
EOIR-28 Notice of Entry of Appearance as Attorney or Representative
before the Immigration Court (EOIR-28 Notice of Entry of Appearance);
(2) The organization has on its staff at least one attorney, as
defined in Sec. 1292.1(a)(1) of this chapter, or at least one
accredited representative, as defined in Sec. 1292.1(a)(4) of this
chapter; and
(3) No attorney or accredited representative who will provide pro
bono legal services on the organization's behalf before EOIR is the
subject of an order of disbarment under Sec. 1003.101(a)(1) or
suspension under Sec. 1003.101(a)(2).
(b) Organizations not recognized under Sec. 1292.2. An
organization that is not recognized under Sec. 1292.2 of this chapter
is eligible to apply to have its name included on the List if:
(1) The organization is established in the United States;
(2) The organization will provide a minimum of 50 hours per year of
pro bono legal services to aliens at each immigration court location
where the organization intends to be included on the List, in cases
where an attorney of the organization files a Form EOIR-28 Notice of
Entry of Appearance;
(3) The organization has on its staff at least one attorney, as
defined in Sec. 1292.1(a)(1) of this chapter; and
(4) No attorney who will provide pro bono legal services on the
organization's behalf before EOIR is the subject of an order of
disbarment under Sec. 1003.101(a)(1) or suspension under Sec.
1003.101(a)(2).
(c) Pro bono referral services. A referral service is eligible to
apply to have its name included on the List at each immigration court
location where the referral service either refers or plans to refer
cases to attorneys or organizations that will provide pro bono legal
services to aliens in proceedings before an immigration judge.
(d) Attorneys. An attorney, as defined in Sec. 1292.1(a)(1) of
this chapter, is eligible to apply to have his or her name included on
the List if the attorney:
[[Page 55671]]
(1) Is not the subject of an order of disbarment under Sec.
1003.101(a)(1) or suspension under Sec. 1003.101(a)(2);
(2) Will provide a minimum of 50 hours per year of pro bono legal
services to aliens at each immigration court location where the
attorney intends to be included on the List, in cases where he or she
files a Form EOIR-28 Notice of Entry of Appearance; and
(3) Cannot provide pro bono legal services through or in
association with an organization or pro bono referral service described
in paragraph (a), (b), or (c) of this section because:
(i) Such an organization or referral service is unavailable; or
(ii) The range of services provided by an available organization(s)
or referral service(s) are insufficient to address the needs of the
community.
0
6. Revise Sec. 1003.63 to read as follows:
Sec. 1003.63 Applications.
(a) Generally. A form is not required in order to apply to be
included on the List. To be included on the List, any organization, pro
bono referral service, or attorney that is eligible under Sec. 1003.62
to apply to be included on the List must file an application with the
Director. Applications must be submitted in writing and received by the
Director at least 60 days in advance of the quarterly update in order
to be considered. The application must:
(1) Establish by clear and convincing evidence that the applicant
qualifies to be on the List pursuant to Sec. 1003.61(c);
(2) Specify how the organization, pro bono referral service, or
attorney wants its name to be set forth on the List;
(3) Identify each immigration court location where the
organization, pro bono referral service, or attorney provides, or plans
to provide, pro bono legal services;
(4) Include on the envelope the notation ``Application for List of
Pro Bono Legal Service Providers''; and
(5) Include proof of service, as defined in Sec. 1003.13, on the
court administrator for each immigration court location where the
organization, pro bono referral service, or attorney will provide pro
bono legal services.
(b) Organizations. An organization, whether recognized or not under
Sec. 1292.2, must submit with its application a declaration signed by
an authorized officer of the organization that states under penalty of
perjury:
(1) That it will provide annually at least 50 hours of pro bono
legal services to aliens in removal or other proceedings before each
immigration court location identified in its application;
(2) That every attorney who will provide pro bono legal services
before EOIR on behalf of the organization:
(i) 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
(ii) is not under any order suspending, enjoining, restraining,
disbarring, or otherwise restricting him or her in the practice of law;
(3) That no attorney or accredited representative who will provide
pro bono legal services before EOIR on behalf of the organization is
the subject of an order of disbarment under Sec. 1003.101(a)(1) or
suspension under Sec. 1003.101(a)(2); and,
(4) Any specific limitations it has in providing pro bono legal
services (e.g., not available to assist detained aliens or aliens with
criminal convictions, or available for asylum cases only).
(c) Pro bono referral services. A pro bono referral service must
submit with its application a declaration signed by an authorized
officer of the referral service that states under penalty of perjury:
(1) That it will offer its referral services to aliens in removal
or other proceedings before each immigration court location identified
in its application; and,
(2) Any specific limitations it has in providing its pro bono
referral services (e.g., not available to assist detained aliens or
aliens with criminal convictions, or available only for asylum cases
only).
(d) Attorneys. An attorney must submit with his or her application
a declaration that states under penalty of perjury:
(1) That he or she will provide annually at least 50 hours of pro
bono legal services to aliens in removal or other proceedings before
each immigration court location identified in his or her application;
(2) Any specific limitations the attorney has in providing pro bono
legal services (e.g., not available to assist detained aliens or aliens
with criminal convictions, or available for asylum cases only);
(3) A description of the good-faith efforts he or she made to
provide pro bono legal services through an organization or pro bono
referral service described in paragraph (a), (b), or (c) of Sec.
1003.62 to aliens appearing before each immigration court location
listed in the application;
(4) An explanation that any such organization or referral service
is unavailable or that the range of services provided by available
organization(s) or referral service(s) are insufficient to address the
needs of the community;
(5) The bars of the highest courts of the states, possessions,
territories, or commonwealths of the United States, or the District of
Columbia, in which he or she is eligible to practice law, and that he
or she is a member in good standing of each, including the attorney's
bar number, if any;
(6) That he or she is not under any order suspending, enjoining,
restraining, disbarring, or otherwise restricting him or her in the
practice of law; and
(7) That he or she is not the subject of an order of disbarment
under Sec. 1003.101(a)(1) or suspension under Sec. 1003.101(a)(2).
(e) Applications approved before [insert effective date of final
rule]. Providers whose applications to be included on the List were
approved before [effective date of final rule to be inserted] must file
an application under this section as follows: Organizations and pro
bono referral services, within one year of [effective date of final
rule to be inserted]; attorneys, within six months of [effective date
of final rule to be inserted]. The names of providers who do not file
an application as required by this paragraph shall be removed from the
List following expiration of the application time period, the removal
of which will be reflected no later than in the next quarterly update.
(f) Notice and comments. (1) Public notice and comment. The names
of the applicants, whether organizations, pro bono referral services,
or individuals, meeting the regulatory requirements to be included on
the List shall be publicly posted for 15 days after receipt of the
applications by the Director, and upon request a date stamped copy of
each application shall be made available for review. Any individual may
forward to the Director comments or a recommendation for approval or
disapproval of an application within 15 days from the last date the
name of the applicant is publicly posted. The commenting party shall
also include proof of service of a copy of any such comment or
recommendation on the subject organization, pro bono referral service,
or individual, in accordance with the definition of ``service''
described in Sec. 1003.13.
(2) Response. The applicant has 15 days to respond from the date of
service of the comment. All responses must be filed with the Director
and include proof of service of a copy of such response on the
commenting party, in accordance with the definition of ``service''
described in Sec. 1003.13.
[[Page 55672]]
0
7. Revise Sec. 1003.64 to read as follows:
Sec. 1003.64 Approval and denial of applications.
(a) Authority. The Director in his discretion shall have the
authority to approve or deny an application to be included on the List
of Pro Bono Legal Service Providers. The Director may request
additional information from the applicant to determine whether the
applicant qualifies to be included on the List.
(b) Decision. The applicant shall be notified of the decision in
writing. The written notice shall be served in accordance with the
definition of ``service'' described in Sec. 1003.13. The written
notice shall be served on the applicant at the address provided on the
application unless the applicant subsequently provides a change of
address pursuant to Sec. 1003.66.
(1) Denials. If the application is denied, the applicant shall be
given a written explanation of the grounds for such denial, and the
decision shall be final. Such denial shall be without prejudice to file
another application at any time after the next quarterly publication of
the List.
(2) Approval and continuing qualification. If the application is
approved, the applicant's name will be included on the List at the next
quarterly update. Every three years from the date of approval, a
provider must file with the Director a declaration, under penalty of
perjury, stating that the provider remains qualified to be included on
the List under paragraphs (a), (b), (c), or (d) of Sec. 1003.62. The
declaration must include alien registration numbers of clients in whose
cases the provider rendered pro bono legal services under Sec. Sec.
1003.62(a)(1), (b)(2), or (d)(2), representing at least 50 hours of pro
bono legal services each year since the provider's most recent such
declaration, or since the provider was included on the List, whichever
was more recent. If a provider fails to timely file the declaration or
declares that it is no longer qualified to be included on the List, the
provider's name will be removed from the List at the next quarterly
update. Failure to file a declaration within the applicable time period
does not prohibit the filing of a new application to be included on the
List.
0
8. Revise Sec. 1003.65 to read as follows:
Sec. 1003.65 Removal of a provider from the List.
(a) Automatic removal. If the Director determines that an attorney
on the List is the subject of a final order of disbarment under Sec.
1003.101(a)(1), or an order of suspension under Sec. 1003.101(a)(2),
then the Director shall:
(1) Remove the name of the attorney from the List no later than at
the next quarterly update; and,
(2) Notify the attorney of such removal in writing, at the last
known address given by the provider.
(b) Requests for removal.
(1) Any provider may, at any time, submit a written request to have
the provider's name removed from the List. The written request may
include an explanation for the voluntary removal. Upon such written
request, the name of the provider shall be removed from the List, and
such removal will be reflected no later than in the next quarterly
update.
(2) Any provider removed from the List at the provider's request
may seek reinstatement to the List upon written notice to the Director.
Any request for reinstatement must include a new declaration of
eligibility, as set forth under Sec. 1003.63(b), (c) or (d).
Reinstatement to the List is at the sole discretion of the Director.
Upon the Director's approval of reinstatement, the provider's name
shall be included on the List no later than in the next quarterly
update. Reinstatement to the List does not affect the requirement under
Sec. 1003.64(b)(2) that a provider submit a new declaration of
eligibility every three years from the date of the approval of the
original application to be included on the List.
(c) EOIR inquiry in response to complaints. If EOIR receives
complaints that a particular provider on the List may no longer be
accepting new pro bono clients, the Director may send a written inquiry
to a provider noting that EOIR has received complaints with regard to
the provider's acceptance of pro bono clients and allowing an
opportunity for the provider to state whether the provider is
continuing to comply with the regulations in this subpart or, if
appropriate, whether the provider wishes to request voluntary removal
from the List as provided in paragraph (b). The Director may remove a
provider from the List for failure to respond to a written inquiry
issued under this paragraph within 30 days or such additional time
period stated by the Director in the written inquiry.
(d) Procedures for removing providers from the List. The following
provisions apply in cases not covered by paragraphs (a), (b) or (c).
(1) Grounds. A provider shall be removed from the List if it, he,
or she:
(i) Fails to comply with Sec. 1003.66;
(ii) Has filed a false declaration in connection with an
application filed pursuant to Sec. 1003.63;
(iii) Improperly uses the List primarily to advertise or solicit
clients for compensated legal services; or,
(iv) Fails to comply with any and all other requirements of this
subpart.
(2) Notice. If the Director determines that a provider falls within
one or more of the enumerated grounds under paragraph (d)(1) of this
section, the Director shall promptly notify the provider in writing, at
the address last provided to the Director by the provider, of the
Director's intention to remove the name of the provider from the List.
(3) Response. The provider may submit a written answer within 30
days from the date the notice is served, as described in Sec. 1003.13.
The provider must establish by clear and convincing evidence that the
provider continues to meet the qualifications for inclusion on the
List, by declaration under penalty of perjury as to the provider's
continued compliance with eligibility requirements under this
subchapter, which must include alien registration numbers of clients in
whose cases the provider rendered pro bono legal services under Sec.
1003.62(a)(1), (b)(2), or (d)(2), representing at least 50 hours of pro
bono services each year since the provider's most recent declaration
under Sec. 1003.64(b)(2), or since the provider was included on the
List, whichever was more recent.
(4) Decision. If, after consideration of any response submitted by
the provider, the Director determines that the provider is no longer
qualified to remain on the List, the Director shall:
(i) Remove the name of the provider from the List no later than in
the next quarterly update; and
(ii) Notify the provider of such removal in writing, at the address
last provided to the Director by the provider.
(5) Disciplinary Action. Removal from the List pursuant to Sec.
1003.65(a), (b), (c) or (d) shall be without prejudice to the authority
to discipline a practitioner under EOIR's rules and procedures for
professional conduct for practitioners listed in 8 CFR part 1003,
subpart G.
0
9. Add Sec. 1003.66, to read as follows:
Sec. 1003.66 Changes in address or status.
All entities or persons with a pending application under this
subpart, and all providers on the List, are under a continuing
obligation to notify the Director, in writing or by whatever electronic
notification process approved by the Director, within ten business
days, of any:
(a) Change of address;
(b) Change of telephone number;
(c) Change in eligibility under Sec. 1003.62;
[[Page 55673]]
(d) Change regarding specific limitations to providing pro bono
legal services under Sec. 1003.63;
(e) Receipt of an order of disbarment under Sec. 1003.101(a)(1) or
suspension under Sec. 1003.101(a)(2) by the provider (if an attorney),
or by an attorney or representative providing pro bono services before
EOIR on behalf of the provider; or
(f) Change in professional status, including bar membership or any
order suspending, enjoining, restraining, disbarring, or otherwise
restricting the provider (if an attorney), or an attorney or
representative providing pro bono services before EOIR on behalf of the
provider, in the practice of law.
PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE
UNITED STATES
0
10. The authority citation for part 1240 continues to read as follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227,
1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105-
100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277, (112 Stat.
2681).
0
11. In Sec. 1240.10, revise paragraphs (a)(2) and (a)(3), to read as
follows:
Sec. 1240.10 Hearing.
(a) * * *
(2) Advise the respondent of the availability of pro bono legal
services for the immigration court location at which the hearing will
take place, and ascertain that the respondent has received a list of
such pro bono legal service providers.
(3) Ascertain that the respondent has received a copy of appeal
rights.
* * * * *
Sec. 1240.32 [Amended]
0
12. Amend Sec. 1240.32 in paragraph (a) by removing the words
``Government, and of the availability of free legal services programs
qualified under 8 CFR part 1003 and organizations recognized pursuant
to Sec. 1292.2 of this chapter located in the district where his or
her exclusion hearing is to be held; and shall ascertain that the
applicant has received a list of such programs'' and adding, in their
place, the words ``Government; advise him or her of the availability of
pro bono legal services for the immigration court location at which the
hearing will take place, and ascertain that he or she has received a
list of such pro bono legal service providers''.
Sec. 1240.48 [Amended]
0
13. Amend Sec. 1240.48 in paragraph (a) by removing the words ``free
legal services programs qualified under 8 CFR part 1003 and
organizations recognized pursuant to Sec. 1292.2 of this chapter,
located in the district where the deportation hearing is being held;
ascertain that the respondent has received a list of such programs''
and adding, in their place, the words ``pro bono legal services for the
immigration court location at which the hearing will take place;
ascertain that the respondent has received a list of such pro bono
legal service providers''.
PART 1241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED
0
14. The authority citation for part 1241 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223,
1224, 1225, 1226, 1227, 1231, 1251, 1253, 1255, 1330, 1362; 18
U.S.C. 4002, 4013(c)(4).
Sec. 1241.14 [Amended]
0
15. Amend Sec. 1241.14 in paragraph (g)(3)(i) by removing the words
``a list of free legal service providers,'' and adding, in their place,
the words ``the List of Pro Bono Legal Service Providers for the
immigration court at which the hearing is being held''.
Dated: August 4, 2014.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2014-21686 Filed 9-16-14; 8:45 am]
BILLING CODE 4410-30-P
