Separate Representation for Custody and Bond Proceedings, 59499-59502 [2015-24016]

Agencies

• Executive Office for Immigration Review
• Department of Justice

[Federal Register Volume 80, Number 190 (Thursday, October 1, 2015)]
[Rules and Regulations]
[Pages 59499-59502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24016]



[[Page 59499]]

Vol. 80

Thursday,

No. 190

October 1, 2015

Part V





Department of Justice





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Executive Office for Immigration Review





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8 CFR Parts 1003, 1240, 241, et al.





 Separate Representation for Custody and Bond Proceedings; List of Pro 
Bono Legal Service Providers for Individuals in Immigration 
Proceedings; Recognition of Organizations and Accreditation of Non-
Attorney Representatives; Final Rules and Proposed Rule

Federal Register / Vol. 80 , No. 190 / Thursday, October 1, 2015 / 
Rules and Regulations

[[Page 59500]]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1003

[EOIR Docket No. 181; AG Order No. 3563-2015]
RIN 1125-AA78


Separate Representation for Custody and Bond Proceedings

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

ACTION: Final rule.

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SUMMARY: This final rule adopts, without change, the proposed rule 
``Separate Representation for Custody and Bond Proceedings'' as 
published in the Federal Register on September 17, 2014. Specifically, 
this final rule amends the Executive Office for Immigration Review 
(EOIR) regulations relating to the representation of an individual in 
custody and bond proceedings before EOIR by allowing a representative 
before EOIR to enter an appearance in custody and bond proceedings 
without such appearance constituting an entry of appearance for all of 
the individual's proceedings before the Immigration Court.

DATES: This rule is effective December 7, 2015.

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

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    On September 17, 2014, the Department published in the Federal 
Register a rule proposing to amend EOIR's regulations relating to 
representation of aliens in custody and bond proceedings. 79 FR 55659. 
The comment period ended November 17, 2014. The Department received ten 
comments. For the reasons set forth below, the proposed rule is adopted 
as a final rule without change.

II. Background

    The Immigration and Nationality Act (INA) provides that aliens 
appearing before an immigration judge ``shall have the privilege of 
being represented, at no expense to the Government, by counsel of the 
alien's choosing who is authorized to practice in such proceedings.'' 
INA sec. 240(b)(4) (8 U.S.C. 1229a(b)(4)); see also INA sec. 292 (8 
U.S.C. 1362). In order to represent an individual before EOIR, a 
representative must file a Notice of Entry of Appearance with the 
Immigration Court or the Board of Immigration Appeals (Board). See 8 
CFR 1003.17, 1003.3(a)(3). A representative who enters his or her 
appearance before the Immigration Court is the representative of record 
for the individual in all of the individual's proceedings, including 
removal or deportation proceedings and, if the individual is detained, 
custody and bond proceedings. Under the current rules, to the extent a 
representative wishes to represent an individual solely in custody and 
bond proceedings, and not in any other proceedings before the 
Immigration Court, he or she must file a motion to withdraw 
representation after the individual's custody and bond proceedings 
conclude. Cf. Matter of N-K- & V-S-, 21 I&N Dec. 879, 880, 881 n.2 (BIA 
1997). Whether to grant or deny that motion is within the sole 
discretion of the immigration judge presiding over the particular case. 
See 8 CFR 1003.17(b).
    In order to authorize a representative to enter an appearance 
solely for custody and bond proceedings before the Immigration Court, 
this final rule amends EOIR's regulations at 8 CFR 1003.17 to 
explicitly allow for separate appearances in custody and bond 
proceedings. Permitting such separate appearances is expected to 
encourage more attorneys and accredited representatives to agree to 
represent individuals who would otherwise appear pro se at their 
custody and bond proceedings, which, in turn, will benefit the public 
by increasing the efficiency of the Immigration Courts.
    Under the current regulations, representatives are already required 
to file a Notice of Entry of Appearance on Form EOIR-28 in any 
proceeding before an immigration judge. See 8 CFR 1003.17. Under this 
final rule, representatives will continue to be required to file a Form 
EOIR-28 in custody and bond proceedings as required by 8 CFR 1003.17. 
However, as described herein, EOIR is amending the Form EOIR-28 to 
require a representative to indicate if he or she is entering an 
appearance for custody and bond proceedings only, any other proceedings 
only, or for all proceedings.
    The effective date for this rule, December 7, 2015, has been 
designated to coincide with the date on which EOIR's case management 
system will permit separate entries of appearance in custody and bond 
proceedings. Separate appearances will not be permitted prior to the 
effective date.

III. Comments and Responses

    As noted above, the Department received ten comments in response to 
the proposed rule. One comment was from the Executive Director of the 
Catholic Legal Immigration Network; one was from the American 
Immigration Lawyers Association; one was from the Executive Director of 
the National Immigrant Justice Center; one was from a clinical 
professor at the Louisiana State University Law Center; one was from a 
group of law students; five were from individual commenters. All ten 
commenters expressed universal support for promulgation of this final 
rule. Where the commenters also provided suggested modifications to the 
rule or otherwise offered suggestions for implementation of the rule, 
the Department has summarized those comments below and responded to 
them. The comments are addressed by topic because some commenters 
raised multiple subjects and some comments overlapped.
    Comment. Two commenters suggested that EOIR consider expanding the 
proposed rule to allow for certain types of limited appearances. 
Specifically, one commenter suggested that EOIR expand the rule to 
allow limited appearances on behalf of children in immigration 
proceedings during the time they are in the custody of the Department 
of Health and Human Services, as a means to permit pro bono attorneys 
and legal service providers to represent these children without 
requiring them to remain the attorney of record after the child is 
released to family in another part of the country. The other commenter 
suggested that EOIR expand the rule to allow limited appearances for 
distinct and finite purposes, including but not limited to motions to 
reopen, motions for change of venue, or motions to remand.
    Response. EOIR declines to incorporate, into the final rule, any 
expansion to allow limited appearances as requested by these 
commenters. As noted in the preamble to the proposed rule, under EOIR's 
regulations, custody and bond proceedings are separate and apart from 
removal and deportation proceedings. See 79 FR 55659, 55660 (Sep. 17, 
2014) (citing 8 CFR 1003.19(d); Matter of Guerra, 24 I&N Dec 37, 40 n.2 
(BIA 2006); Matter of R-S-H-, 23 I&N Dec 629, 630 n.7 (BIA 2003)). This 
final rule is intended only to effectuate that separation by allowing 
attorneys or representatives to appear on behalf of an individual in 
his or her custody and bond proceedings without being held responsible 
for appearing, filing documents, receiving notices, or any of

[[Page 59501]]

the other duties enumerated in 8 CFR 1292.5(a) in the alien's other 
proceedings, unless and until the attorney or representative files a 
Notice of Entry of Appearance in such proceedings. Such separation is 
consistent with the Board's precedential decision Matter of Velasquez, 
19 I&N Dec. 377, 384 (BIA 1986), as a separate appearance in custody 
and bond proceedings would not be considered a ``limited'' appearance, 
which is generally understood to refer to a limit in the scope of 
representation required by a representative. By contrast, this final 
rule requires a representative of record to represent an individual in 
all aspects of each separate type of proceeding, unless the immigration 
judge grants a motion to withdraw or substitute counsel.
    Comment. Three of the commenters expressed concerns regarding the 
information collection necessary to implement the rule. First, one 
commenter expressed concerns that the changes to the information 
collection necessary to implement the rule might delay finalization and 
implementation of the rule, and suggested that, in the interim, EOIR 
provide guidance to the immigration courts and liberally grant motions 
to withdraw so as not to delay implementation. Another commenter 
requested the addition of check boxes on the Form EOIR-28 to allow 
practitioners to indicate their type of appearance as well as an 
attestation that the practitioner explained the scope of his or her 
representation to his or her client and that the practitioner has 
obtained his or her client's consent. A third commenter similarly 
suggested that EOIR either add check boxes on the Form EOIR-28 to allow 
a practitioner to indicate for which proceedings they are entering an 
appearance or create a new appearance form solely for custody and bond 
proceedings.
    Response. In response to the first commenter's concern, EOIR notes 
that it has been working expeditiously to implement the necessary 
changes to the information collection for the final rule, which will 
eliminate the need for interim guidance. In response to the second and 
third commenter's concerns, while EOIR believes that it could be 
burdensome and inefficient to require practitioners to submit a new 
type of appearance form solely for custody and bond proceedings, it is 
amending the current Form EOIR-28 so that it may be used for entering 
an appearance in all types of proceedings before EOIR. Specifically, 
EOIR is revising the Form EOIR-28 to include check boxes for 
practitioners to indicate whether they are entering an appearance for 
all proceedings; custody and bond proceedings only; or all proceedings 
other than custody and bond proceedings. Regarding the third 
commenter's concern as to client consent to separate appearances, EOIR 
notes that the current Form EOIR-28 contains a check box for the 
practitioner to indicate that he or she has received the respondent's 
consent for representation. EOIR is also adding language to the revised 
Form EOIR-28 clarifying that the practitioner, by entering his or her 
appearance before EOIR, acknowledges that the practitioner will be 
subject to the disciplinary rules and procedures at 8 CFR 1003.101 et 
seq., including, pursuant to 8 CFR 292.3(h)(3) and 1003.108(c), 
publication of the name of the practitioner and any finding(s) of 
misconduct by EOIR. EOIR believes that the check box regarding alien 
consent, coupled with this additional language clarifying the 
applicability of EOIR's disciplinary rules and procedures to 
practitioners entering an appearance before EOIR, will ensure that a 
practitioner will make an individual in proceedings before EOIR aware 
of the scope of his or her representation.

IV. Regulatory Requirements

A. Regulatory Flexibility Act

    The Department has reviewed this regulation in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that 
this rule will not have a significant economic impact on a substantial 
number of small entities. The rule will not regulate ``small 
entities,'' as that term is defined in 5 U.S.C. 601(6).

B. Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

C. 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 (SBREFA), 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.

D. 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 consideration of potential economic, 
environmental, public health, and safety effects, distributive impacts, 
and equity.
    The benefits of this final rule include increased representation of 
detained individuals by permitting a representative to enter an 
appearance before the Immigration Court for the discrete task of 
securing a bond or release from detention, without requiring the 
representative also to represent the individual in all of the 
individual's immigration proceedings. The public will benefit from this 
amendment to the regulations, because the amendment will make it easier 
for individuals who may not be able to afford to hire an attorney for 
all of their proceedings before the Immigration Court to at least be 
able to be represented during their custody and bond proceedings. The 
Department anticipates that this rule will also have a positive 
economic impact on the Department, because increasing the number of 
individuals who are represented in their custody and bond proceedings 
will enable immigration judges to adjudicate proceedings in a more 
effective and timely manner, adding to the overall efficiency of 
immigration proceedings. The Department does not foresee any burdens to 
the public or the Department.

E. 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

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responsibilities among the various levels of government. Therefore, in 
accordance with section 6 of Executive Order 13132, the Department has 
determined that this rule does not have sufficient federalism 
implications to warrant preparation of a federalism summary impact 
statement.

F. Executive Order 12988 (Civil Justice Reform)

    This rule has been prepared in accordance with the standards in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

    The information collection requirement (Form EOIR-28) contained in 
this rule has been previously approved by the Office of Management and 
Budget under the provisions of the Paperwork Reduction Act (OMB Number 
1125-0006). This final rule contains revised recordkeeping and 
reporting requirements. Specifically, EOIR will collect additional 
information on the Form EOIR-28 indicating the type of proceeding(s) 
for which an attorney or representative is entering his or her 
appearance. For this reason, EOIR has submitted the information 
collection request to OMB for review and clearance in accordance with 
review procedures of the Paperwork Reduction Act of 1995, 44 U.S.C. 
chapter 35, and its implementing regulations, 5 CFR part 1320. EOIR 
received written comments regarding this information collection as 
noted above. Notice of OMB approval for this information collection 
will be published in a future Federal Register document. The estimated 
public burden associated with this collection is 17,510 hours. It is 
estimated that 175,101 responses will be received annually, and that 
each respondent will take 6 minutes to complete the form.

List of Subjects in 8 CFR Part 1003

    Administrative practice and procedure, Aliens, Immigration, Legal 
services, Organization and functions (Government agencies).

    Accordingly, for the reasons stated in the preamble, part 1003 of 
chapter V of title 8 of the Code of Federal Regulations is amended as 
follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

    Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 
1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 
2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; 
section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.


0
2. In Sec.  1003.17, revise paragraph (a) to read as follows:


Sec.  1003.17  Appearances.

    (a) In any proceeding before an Immigration Judge in which the 
alien is represented, the attorney or representative shall file a 
Notice of Entry of Appearance on Form EOIR-28 with the Immigration 
Court, and shall serve a copy of the Notice of Entry of Appearance on 
the DHS as required by 8 CFR 1003.32(a). The entry of appearance of an 
attorney or representative in a custody or bond proceeding shall be 
separate and apart from an entry of appearance in any other proceeding 
before the Immigration Court. An attorney or representative may file an 
EOIR-28 indicating whether the entry of appearance is for custody or 
bond proceedings only, any other proceedings only, or for all 
proceedings. Such Notice of Entry of Appearance must be filed and 
served even if a separate Notice of Entry of Appearance(s) has 
previously been filed with the DHS for appearance(s) before the DHS.
* * * * *

     Dated: September 15, 2015.
Sally Quillian Yates,
Deputy Attorney General.
[FR Doc. 2015-24016 Filed 9-29-15; 11:15 am]
 BILLING CODE 4410-30-P