Executive Office for Immigration Review Electronic Case Access and Filing, 78240-78258 [2020-26115]

Download as PDF 78240 Proposed Rules Federal Register Vol. 85, No. 234 Friday, December 4, 2020 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Parts 1001, 1003, 1208, 1214, 1240, 1245, 1246, 1292 [EOIR Docket No. 18–0203; Dir. Order No. 04–2021] RIN 1125–AA81 Executive Office for Immigration Review Electronic Case Access and Filing Executive Office for Immigration Review, Department of Justice. ACTION: Notice of proposed rulemaking. AGENCY: The Executive Office for Immigration Review (‘‘EOIR’’) is proposing to implement electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals (‘‘BIA’’). The proposed rule would update the relevant regulations necessary to implement these electronic filing and records applications, including requiring certain users to file documents electronically and changes to service of process. EOIR further proposes clarifications to the regulations regarding law student filing and accompaniment procedures. DATES: Electronic comments must be submitted and written comments must be postmarked or otherwise indicate a shipping date on or before January 4, 2021. The electronic Federal Docket Management System at https:// www.regulations.gov will accept electronic comments until 11:59 p.m. Eastern Time on that date. ADDRESSES: If you wish to provide comment regarding this rulemaking, you must submit comments, identified by the agency name and reference RIN 1125–AA81 or EOIR Docket No. 18– 0203, by one of the two methods below. • Federal eRulemaking Portal: https://www.regulations.gov. Follow the SUMMARY: VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 website instructions for submitting comments. • Mail: Paper comments that duplicate an electronic submission are unnecessary. If you wish to submit a paper comment in lieu of electronic submission, please direct the mail/ shipment to: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041. To ensure proper handling, please reference the agency name and RIN 1125–AA81 or EOIR Docket No. 18–0203 on your correspondence. Mailed items must be postmarked or otherwise indicate a shipping date on or before the submission deadline. FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls Church, VA 22041, telephone (703) 305–0289 (not a toll-free call). SUPPLEMENTARY INFORMATION: I. Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule via the one of the methods and by the deadline stated above. All comments must be submitted in English, or accompanied by an English translation. The Department of Justice (the ‘‘Department’’) also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments that will provide the most assistance to the Department in developing these procedures will reference a specific portion of the proposed rule; explain the reason for any recommended change; and include data, information, or authority that support such recommended change. Please note that all comments received are considered part of the public record and made available for public inspection at https:// www.regulations.gov. Such information includes personally identifying information (such as your name, address, etc.) voluntarily submitted by the commenter. If you want to submit personally identifying information (such as your name, address, etc.) as part of your PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 comment, but do not want it to be posted online, you must include the phrase ‘‘PERSONALLY IDENTIFYING INFORMATION’’ 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 also must 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 https:// www.regulations.gov. Personally identifying information 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. The Department may withhold from public viewing information provided in comments that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of https:// www.regulations.gov. To inspect the agency’s public docket file in person, you must make an appointment with the agency. Please see the FOR FURTHER INFORMATION CONTACT paragraph above for agency contact information. The Department may withhold from public viewing information provided in comments that they determine may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of https://www.regulations.gov. II. Background A. Introduction Since July 2018, EOIR has been piloting a voluntary program to test electronic filing and records applications for certain cases filed with the immigration courts and the BIA. See EOIR Electronic Filing Pilot Program, 83 FR 29575 (June 25, 2018). Following this successful pilot at five immigration courts, EOIR is now proposing to permanently implement these electronic E:\FR\FM\04DEP1.SGM 04DEP1 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules filing and records applications at the immigration courts and the BIA. This proposed rule would amend the regulatory sections necessary to implement the electronic filing and records applications. B. History In 1998, Congress passed the Government Paperwork Elimination Act (‘‘GPEA’’), which requires federal agencies to provide the public with the ability to conduct business electronically, when practicable, with the federal government. See Public Law 105–277, § 1701–10, Oct. 21, 1998, 112 Stat. 2681, 2681–749 to –751. Similarly, in 2002, Congress passed the EGovernment Act of 2002, which promotes electronic government services and requires agencies to use internet-based technology to increase the public’s access to government information and services. See Public Law 107–347, Dec. 17, 2002, 116 Stat. 2899. As a result, EOIR began pursuing a long-term agency plan to create electronic case access and filing applications for the immigration courts and BIA. See Executive Office for Immigration Review Attorney/ Representative Registry, 68 FR 75160, 75161 (Dec. 30, 2003) (‘‘The Department is . . . designing an electronic case access and filing system, to comply with the [GPEA], to achieve the Department’s vision for improved immigration adjudication processing, and to meet the public expectations for electronic government.’’). Under the GPEA, where practicable, executive branch agencies are to provide for electronic submissions in lieu of paper submissions and for the use of electronic signatures. 44 U.S.C. 3504(a)(1)(B)(vi). On April 1, 2013, EOIR completed the first portion of its public-facing electronic applications by establishing eRegistry, a mandatory electronic registry for all attorneys and fully accredited representatives who practice before the immigration courts and the BIA.1 See Registry for Attorneys and Representatives, 78 FR 19400 (Apr. 1, 1 The EOIR regulations differentiate between ‘‘partially accredited representatives’’ who are only authorized to represent persons in matters pending before the Department of Homeland Security (‘‘DHS’’), and ‘‘fully accredited representatives’’ who are authorized to represent persons in matters pending before EOIR as well as matters pending before DHS. See 8 CFR 1292.1(a)(4). Inasmuch as this rule pertains only to practice before EOIR, the only accredited representatives who would be affected by this rule are fully accredited representatives. Accordingly, the references in this rule to ‘‘accredited representatives’’ refer only to fully accredited representatives in the context of their practice before EOIR. VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 2013). At the same time, EOIR began allowing attorneys and accredited representatives 2 to electronically file the Notice of Entry of Appearance as Attorney or Representative (Form EOIR– 27 and Form EOIR–28, for the BIA and immigration courts, respectively). On May 4, 2015, EOIR launched ‘‘eInfo,’’ a web-based application that allows registered attorneys and accredited representatives to view their clients’ case information. See EOIR, The Executive Office for Immigration Review Announces I 3 (May 4, 2015), https:// www.justice.gov/eoir/pr/executiveoffice-immigration-review-announces-i. Attorneys and accredited representatives can log into the eInfo application to view a list of cases for which they have an active Notice of Entry of Appearance (Form EOIR–27 or Form EOIR–28) and view case-related information. Since June 2017, EOIR has been undertaking additional and more expansive initiatives to reduce its longstanding backlog of cases and working to ensure the more efficient handling of matters before the immigration court system. As part of that plan, in July 2018, EOIR launched a pilot program to allow attorneys and accredited representatives to electronically file case-related documents with the immigration courts and the BIA, and for EOIR to process cases using an electronic record of proceeding (‘‘eROP’’). See 83 FR at 29575. The pilot launched in five immigration courts between July and December 2018: San Diego, California in July; Atlanta, Georgia and Denver, Colorado in August; Baltimore, Maryland in September; and York, Pennsylvania in December.3 The BIA has participated in the pilot for operational planning purposes but is not yet accepting electronic filings. As of September 2020, more than 15,000 private attorneys had volunteered to participate, representatives and immigration court staff had electronically uploaded more than 500,000 documents, and court staff had created more than 80,000 eROPs. 2 EOIR’s Office of Policy reviews recognized organizations’ applications for non-attorneys to become fully accredited representatives who, upon approval, can represent aliens in immigration court proceedings and before DHS. For more information, please see EOIR, Recognition & Accreditation (R&A) Program (June 8, 2020), https://www.justice.gov/ eoir/recognition-and-accreditation-program. 3 Charlotte was originally scheduled as a pilot location in September 2018, but the pilot there was cancelled due to Hurricane Florence. Similarly, York was moved from July 2018 to December 2018 to accommodate additional internal development to ensure ECAS functionality for detained courts. PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 78241 EOIR is continuing to expand the rollout of this system, which will eventually expand to all immigration courts and the BIA. The EOIR Courts and Appeals System (‘‘ECAS’’) is now available in several immigration courts and adjudication centers. Information regarding the full implementation schedule will be posted on EOIR’s website. EOIR, EOIR Courts & Appeals System (ECAS)—Online Filing, (Oct. 5, 2020) https://www.justice.gov/eoir/ ECAS. III. Proposed Rule This proposed rule would provide for EOIR’s implementation of the electronic filing and records applications that are currently in use in several immigration courts and the BIA. Following the launch of the electronic filing and records applications in each immigration court, all cases in which the Department of Homeland Security (‘‘DHS’’) files a charging document in that court after the launch date are processed electronically, meaning that EOIR will maintain an eROP as the official record of proceeding for that case. Regardless of whether all parties are participating in the electronic filing and records applications, EOIR will maintain an eROP for such cases. If a document is filed on paper, EOIR will scan the document into the eROP and maintain the eROP as the official record of proceeding. In addition, attorneys and accredited representatives may submit bond redetermination requests electronically with that court, which EOIR will then process electronically. For more information about the privacy risks associated with the eROP, and the measures EOIR has taken to protect this information, please see EOIR, Privacy Impact Assessment for the eWorld Adjudication System, 19–24 (Dec. 13, 2018), https://www.justice.gov/opcl/ page/file/1120991/download. Appeals of immigration judge decisions filed with the BIA will similarly be processed electronically following the launch of the electronic filing and records applications system at the BIA. Appeals of immigration judge decisions, appeals from DHS officer decisions,4 and motions to reopen or reconsider filed with the BIA will follow existing legal process, but will be filed and processed electronically. All cases initiated at an immigration court or the BIA before the launch of the electronic filing and records 4 For appeals of DHS officer decisions that are subject to review by the BIA, the process for DHS would not change under this rule as DHS currently submits all of those materials to the BIA for adjudication, and it will continue to do so. See 8 CFR 1003.5(b). E:\FR\FM\04DEP1.SGM 04DEP1 78242 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules applications in that location will continue to be processed in paper by EOIR, and will continue to require the parties to paper file documents in those cases. Similarly, if a case begins in an immigration court with an eROP, and then changes venue to an immigration court that has not yet implemented the electronic filing and records applications, that case will be converted to a paper record and processed in paper at the new court. In the future, EOIR may explore converting existing paper records into eROPs following the launch of the electronic filing and records applications at the immigration court with administrative control over the paper record of proceeding (‘‘ROP’’); such conversion would also depend on the cost and technological feasibility. Once this proposed rule is adopted in final form, electronic filing will become mandatory for all attorneys and accredited representatives, with limited exceptions as discussed further below. This includes mandatory electronic filing of charging documents initiated by DHS, 8 CFR 1003.13 (defining charging documents), and mandatory electronic filing of other documents.5 However, until this proposed rule is adopted in final form, participation in the pilot program at any court where EOIR has launched the electronic filing capabilities or the BIA will remain voluntary under the terms of the existing pilot program. Similarly, immigration courts and the BIA will continue to follow existing procedures for sending and receiving case-related materials in those cases where the attorney or accredited representative has not agreed to participate in the pilot program. In order to complete this full nationwide implementation, EOIR is proposing to make the following changes to its regulations. 5 Non-documentary filings (e.g., proposed audio or video exhibits) are not contemplated under existing regulations. See, e.g., 8 CFR 1003.31, 1003.32, 1003.33 (all referring to ‘‘documents’’). Nevertheless, consistent with an immigration judge’s authority to make determinations regarding removability and applications, 8 CFR 1240.1(a)(1)(i)–(ii), and an immigration judge’s authority to take action consistent with the law to decide cases before them, 8 CFR 1003.10(b), such filings may be considered subject to an immigration judge’s discretion. The proposed rule does not alter that practice. Consequently, because security protocols may prevent the direct uploading of audio or video files into ECAS as filings, parties wishing to submit non-documentary filings in cases with an eROP should continue to file them in a physical format (e.g., a CD or DVD) directly with the relevant immigration court. Such non-documentary filings, subject to the immigration judge’s discretion, may then be incorporated into the eROP as appropriate. VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 A. Filing 1. Who May File Electronically This rulemaking proposes that electronic filing will become mandatory for DHS 6 and attorneys and accredited representatives who represent respondents, applicants, or petitioners before EOIR. By mandating electronic filing for attorneys and accredited representatives, EOIR will be able to maintain a complete electronic process for many cases from beginning to end. EOIR anticipates that this will create significant efficiencies for the parties and EOIR. For example, registered parties will be able to file documents electronically at any time of day from any location with internet access, removing concerns related to the restrictions business hours create to meet filing deadlines (i.e., representatives can file after court hours rather than appearing in person at the court or a mail delivery service office during certain hours). Once the electronic filings are accepted, the parties will be able to view all of the documents filed in their case without having to appear at an immigration court to view the paper record. Parties will be required to make all original paper copies of any electronically filed documents available for review upon request of the immigration court, BIA, or the opposing party. Similarly, EOIR will be able to quickly process filings and maintain case records through an electronic system. To provide for possible unanticipated issues arising from mandating electronic filing, this rule proposes to allow for an extended filing deadline when the electronic filing system is unavailable due to an unplanned system outage and to provide immigration judges with the authority to accept paper filings in open court in limited circumstances, including for rebuttal or impeachment purposes; for good cause shown, provided that the filing is otherwise admissible and the immigration judge finds that any applicable filing deadline should be excused; or, when the opposing party does not object to the paper filing. EOIR also intends to make electronic filing through ECAS available on a voluntary basis to pro se respondents, applicants, or petitioners and to reputable individuals and accredited officials, as defined in 8 CFR 1292.1(a)(3) and (a)(5), respectively, because all of the same efficiencies 6 DHS includes all relevant DHS components. See 8 CFR 1001.1(w). DHS will determine which of its employees are responsible for filing documents in ECAS in individual cases. PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 listed above may also flow to those individuals if they choose to use ECAS. Both reputable individuals and accredited officials may act as representatives in immigration proceedings before EOIR and are subject to the same requirements as other representatives, such as the need to file a Form EOIR–28 when making an appearance or receiving service of process in a particular case. See, e.g., 8 CFR 1292.4(a), 1292.5(a). EOIR also recognizes that both types of representatives appear sparingly in proceedings before EOIR, and both reputable individuals and accredited officials, as defined in the regulations, may not have the same sort of familiarity with EOIR’s procedures and requirements as other types of representatives. Cf. 8 CFR 1292.1(a)(3)(iv) (providing that, in order to qualify as a reputable individual, a person may not be one who ‘‘regularly engages in immigration and naturalization practice or preparation’’). Although pro se respondents, applicants, or petitioners and reputable individuals and accredited officials are not currently able to participate in the electronic filing program, this capability will eventually be available for those who opt to use it, and EOIR will adapt its current registration system as appropriate to allow pro se respondents, applicants, or petitioners and reputable individuals and accredited officials to register in order to be able to utilize ECAS. The rulemaking proposes changes to allow for this future ECAS utilization capability by pro se respondents, applicants, or petitioners and reputable individuals and accredited officials.7 EOIR seeks comment on these considerations, including how to best register such users for electronic filing, whether the same two-factor authentication process used for attorneys and accredited representatives would similarly work for these users, whether there are other more effective methods for identity-proofing online filers who do not have the same 7 Although opting in for electronic filing through ECAS is voluntary for pro se respondents, applicants, or petitioners and for reputable individuals and accredited officials, such individuals who choose to opt in will do so for the life of the case and may not opt out without leave from an immigration judge or, for cases pending with the BIA, from the BIA. This qualification sets clear expectations for the individual and reduces the likelihood of confusion among the individual, the opposing party, and the immigration court staff regarding documents filed multiple times through different methods, of the possible loss of documents filed in a manner inconsistent with how the official record of proceeding is being kept, and of the improper effectuation of service on the opposing party. E:\FR\FM\04DEP1.SGM 04DEP1 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules financial or U.S. ‘‘footprint’’ that can be used for remote verification of the person’s identity, and how to combat any potential fraud concerns related to expanding electronic filing capabilities to parties other than attorneys and accredited representatives. For more information on the current registration process for eRegistry, please see EOIR, Frequently Asked Questions: Attorneys and Accredited Representatives (Oct. 1, 2020), https://www.justice.gov/eoir/ ecas/attorney-and-ar-FAQs. EOIR also proposes to change how law students and law graduates, as defined in 8 CFR 1292.1(a)(2), file documents and appear before EOIR. 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 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); see also INA 292, 8 U.S.C. 1362. The Attorney General possesses a general authority to ‘‘establish such regulations . . . as the Attorney General determines to be necessary for carrying out’’ his authorities under the INA. INA 103(g)(2), 8 U.S.C. 1103(g)(2). Pursuant to this authority, this rule proposes to clarify the circumstances under which law students and law graduates are authorized to practice in immigration proceedings. There is no statutory entitlement for law students and law graduates to participate as representatives in immigration proceedings. Rather, the Department has authorized law student representation subject to attorney supervision as a matter of regulatory grace since at least 1975. Representation and Appearance Before Immigration and Naturalization Service and Board of Immigration Appeals, 40 FR 23271 (May 29, 1975). Over time, the Department had modified the regulations governing law student and law graduate practice on multiple occasions. See, e.g., Representation and Appearance, 55 FR 49250 (Nov. 27, 1990) (expanding participation of law students in clinical programs at accredited law schools from only third-year law students to first and second-year students); Executive Office for Immigration Review; Representation and Appearances: Law Students and Law Graduates, 62 FR 23634 (May 1, 1997) (clarifying that law students and law graduates could participate through programs outside of law school clinics and that the prohibition on direct or indirect remuneration for law students and law graduates applies only to remuneration from respondents). The VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 most recent change occurred in 2008, when the Department clarified ‘‘that law students and law graduates must be students and graduates of accredited law schools in the United States’’ in order to practice before EOIR. Professional Conduct for Practitioners— Rules and Procedures, and Representation and Appearances, 73 FR 76914, 76916 (Dec. 18, 2008). As the Department moves toward electronic filing capability for all cases in immigration proceedings, it finds that additional clarifications are warranted to ensure that appropriate attorney supervision over law students and law graduates is maintained and that respondents are not prejudiced by the intrinsically transient nature of such representation. Cf. 78 FR at 19400, 19404 (declining to require law students to register with EOIR due to, among other things, ‘‘the transient nature of law students’ participation in clinical programs and the limited circumstances under which students can represent individuals before EOIR . . . the absence of any mechanism to inform EOIR when a student leaves a program . . . [and the lack of a] regulatory provision permitting a law student to appear before EOIR if not enrolled in a ‘legal aid program or clinic,’ [making] it . . . problematic for those students to remain registered after leaving a clinical program’’). The proposed rule clarifies that all filings by law students must be made through an attorney or accredited representative who is registered with EOIR pursuant to 8 CFR 1292.1(f). As currently drafted, the regulations require ‘‘direct supervision’’ of law students, 8 CFR 1292.1(a)(2)(ii), but do not provide a clear definition of that term. Further, this rulemaking proposes that law graduates, currently required to have ‘‘supervision’’ under the regulations, 8 CFR 1292.1(a)(2)(iii), would also need to file through an attorney or accredited representative registered with EOIR. Law students and law graduates often provide representation through clinics or other short-term programs, which limits the length of their representation and can create confusion that affects the respondent when such short-term representation results in a change of counsel. With electronic filing, it is critical that the court can reach the supervising attorney and that the attorney is familiar with the proceedings, similar to the requirement that the clinic’s address be provided for court communications rather than a student’s personal address. By requiring filings be completed through a supervising attorney or PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 78243 accredited representative, EOIR will be able to ensure that there is a single representative responsible for receiving electronic service from EOIR for the duration of the proceeding. For example, EOIR wants to prevent a scenario where electronic service of an important, time-sensitive document is sent to a law student who, since the last hearing, has left a law school clinic and is not expecting any EOIR-related emails. In practice, this will also increase the use of electronic filing because, under this proposed rule, the supervising attorney or accredited representative will be required to file documents electronically with EOIR. To protect the integrity of the filings, and proceedings as a whole, only registered attorneys and fully accredited representatives will be able to file electronically. The supervising attorney or accredited representative must be the filer to ensure that an attorney or representative authorized to practice before EOIR performs their supervisory role and takes ultimate responsibility for official filings. This change is also consistent with existing requirements in many states regarding law student practice. See, e.g., Ga. Sup. Ct. R. 95(4) (‘‘An attorney who supervises a registered law student shall . . . review, approve and personally sign any document prepared by a student that is filed in any court or tribunal, and review and approve any document prepared by a student that would have binding legal effect on a person or entity receiving services in relation to activities of the student registered pursuant to this Rule’’); Wash. Ad. and Prac. R. 9(f)(4) (a supervising lawyer of a licensed legal intern ‘‘must review and sign all correspondence providing legal advice to clients and all pleadings, motions, briefs, and other documents prepared by the Licensed Legal Intern and ensure that they comply with the requirements of this proposed rule, and must sign the document if it is prepared for presentation to a court’’). In addition, this rulemaking proposes that a law student or law graduate is authorized to practice only if a supervising attorney or accredited representative physically accompanies the law student or law graduate during all immigration court appearances.8 The supervising attorney or accredited representative must enter an appearance in the case and be physically present 8 Nothing in the proposed rule precludes a law student or law graduate from appearing telephonically provided the immigration judge has approved such appearance. In such cases, the supervising attorney or accredited representative would be expected to be present with the law student or law graduate by telephone. E:\FR\FM\04DEP1.SGM 04DEP1 78244 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules and prepared to proceed in case of the inability of the law student or law graduate to do so. The current regulation requires the supervisor to accompany the law student or graduate at the request of the immigration judge or BIA but does not require the supervisor to enter an appearance in the case. As with the proposed filing change for law students, this change is similarly intended to ensure that every case has a representative who is aware of the case and proceedings and is ultimately responsible for proper representation in that case. Moreover, this change is consistent with many state bar rules allowing the practice of law by a law student in limited situations, but with the presence of a supervising attorney for adjudicatory proceedings. See, e.g., N.Y. R. Ct. 805.5(e) (‘‘The supervising attorney shall assume personal professional responsibility for any work undertaken by a law intern and shall supervise the preparation of the intern’s work. Immediate supervision of a law intern shall mean that the supervising attorney shall be personally present throughout the proceedings.’’ (emphasis added)); Tenn. R. Sup. Ct. 7, sec. 10.03(h)(2) (‘‘It is the responsibility of the supervising attorney to ensure that the student is properly supervised and instructed . . . and be present for administrative or adjudicatory proceedings’’ (emphasis added)). Additionally, by requiring the supervising attorney or representative to physically 9 accompany the law student or law graduate, this proposed rule intends to avoid unnecessary delays if the law student or graduate is unable to proceed with representation. The supervising attorney or representative would also need to enter an appearance in order to be able to electronically file documents as required by this proposed rule. This rulemaking also proposes to limit who may accompany the law student or law graduate to attorneys and accredited representatives and to remove the term ‘‘supervising faculty member.’’ This proposed change is not intended to prevent faculty members from supervising law students, and most law school clinical supervising faculty members are already attorneys. Rather, this change would simply require supervising faculty members to be attorneys or accredited representatives authorized to practice before EOIR, in 9 If the law student or law graduate were appearing by telephone or video teleconferencing, the supervising attorney or representative would still need to be physically present with the law student or law graduate but would not need to be physically present in the immigration court. VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 order to support the goal that a licensed attorney or accredited representative be ultimately responsible for filings and appearances before EOIR and to avoid potentially problematic circumstances in which a law student or law graduate is being supervised by a non-attorney or non-accredited representative, possibly in contravention of relevant state bar rules. 2. Registration Process In order to file electronically with EOIR, an attorney or accredited representative must be registered with EOIR. Under existing EOIR regulations, all attorneys or accredited representatives are already required to enroll in eRegistry as a condition of practice before the immigration judges or the BIA. See 8 CFR 1292.1(f). Accordingly, no further registration would be required under this proposed rule for attorneys or accredited representatives. However, in the event that EOIR decides to expand electronic filing in the future to persons other than attorneys or accredited representatives, EOIR anticipates that those persons who are not currently enrolled in eRegistry would be required to complete a onetime registration through EOIR’s eRegistry application, consistent with current practice. The eRegistry system requires the user to complete an online application and, once that application is complete, present identification in person at an immigration court or the BIA.10 Once the user is registered through eRegistry, the user will receive an EOIR ID that will allow the user to log in to the electronic filing applications and view cases and file documents.11 3. Cases Eligible for Electronic Filing Registered users are only able to electronically file documents in a case if that case is eligible for electronic filing. ‘‘Case eligible for electronic filing’’ means any case that DHS seeks to bring before an immigration court after EOIR has formally established an electronic filing system for that court or any case before an immigration court or the BIA that has an eROP. All cases that are initiated at an immigration court or the BIA after that court or the BIA begins using the electronic filing and 10 For more information on the eRegistry process, please see EOIR, EOIR Courts & Appeals System (ECAS)—Online Filing (Oct. 5, 2020), https:// www.justice.gov/eoir/ECAS. 11 For information regarding the mechanics of the actual electronic filing process, please see EOIR, ECAS User Manual, https://www.justice.gov/eoir/ page/file/1300086/download. PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 records applications will be processed with an eROP. For example, if EOIR’s electronic filing and records applications are implemented at the Los Angeles Immigration Court on November 20, 2020, all cases in which DHS files a charging document or the alien files a bond redetermination request at the Los Angeles Immigration Court on November 20, 2020 or later will be processed with an eROP and eligible for electronic filing. In contrast, all other pending proceedings at the Los Angeles Immigration Court initiated on November 19, 2020 or earlier will not be eligible for electronic filing, including motions to reopen filed in cases initiated before this date. This rulemaking proposes to update 8 CFR 1001.1 to include this definition for ‘‘case eligible for electronic filing.’’ Users will be able to see whether a case has an eROP by logging into the electronic filing application and searching for the specific case. If the case allows documents to be uploaded through the electronic filing application, then the case has an eROP. If there is no upload option, then the case does not have an eROP, and all documents must be paper filed with the proper immigration court or the BIA, as appropriate. 4. Electronic Filing Application Availability The proposed regulation would provide guidance for how a party subject to electronic filing requirements should proceed if EOIR’s electronic filing system is unavailable. If EOIR’s electronic filing system is unavailable due to an unplanned system outage on the last day for filing in a specific case, EOIR would evaluate the overall impact and make appropriate filing deadline adjustments (e.g., extensions to the first day that the electronic filing system becomes accessible that is not a Saturday, Sunday, or legal holiday for those cases impacted). EOIR would determine whether the electronic filing system is unavailable due to a system outage sufficient to trigger the extended filing deadline, and EOIR would communicate such outages to external users through email, EOIR’s website, or other methods of communication, as available. Of course, parties maintain the ability to request an extension from the immigration court or BIA or to submit a motion to accept an untimely filing. See Office of the Chief Immigration Judge, Immigration Court Practice Manual 37, 39–40 (Nov. 16, 2020), https://www.justice.gov/eoir/ page/file/1258536/download (last visited Nov. 19, 2020) (‘‘Immigration E:\FR\FM\04DEP1.SGM 04DEP1 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules Court Practice Manual’’); Board of Immigration Appeals, Board of Immigration Appeals Practice Manual, 34, 66 (Oct. 5, 2020), https:// www.justice.gov/eoir/page/file/1324276/ download (last visited Nov. 19, 2020) (‘‘BIA Practice Manual’’). Both the immigration court and the BIA have the discretion to accept untimely filings. See Immigration Court Practice Manual, at 39–40; BIA Practice Manual, at 66. Additionally, in the event that EOIR’s electronic filing system is unavailable, parties are permitted to file paper motions or requests for extensions. This unplanned unavailability policy tracks the federal courts’ policy for their electronic filing system. See Fed. R. Civ. P. 6(a)(3)(A); Fed. R. App. P. 26(a)(3)(A). It also follows the electronic filing requirements for many state judicial systems as well. See, e.g., Tenn. R. Sup. Ct. 46, sec. 5.02 (‘‘In the event the efiling system is offline for technical reasons for a significant portion of a particular day, the clerk, in his or her discretion, is authorized to issue a written declaration that the e-filing system is unavailable for filing on that day, in which event all filings due on that day from Registered Users shall be deemed to be timely if filed the following day.’’). On the other hand, if EOIR’s electronic filing system is unavailable due to a planned, previously announced 12 system outage on the last day for filing in a specific case, this proposed rule would provide that the user must plan accordingly to electronically file the documents during system availability or be prepared to file the documents on paper with the proper immigration court or the BIA in order to meet any applicable filing deadlines. EOIR would communicate these planned outages to external users through email, EOIR’s website, or other methods of communication, as available. This proposed rule would not change the immigration judges’ or BIA’s authority to determine how to treat an untimely filing or prevent parties from making a motion to accept the untimely filing. See Immigration Court Practice Manual, at 39–40; BIA Practice Manual, at 33–40. 5. Filing Classified Information EOIR’s electronic filing and records applications are not rated for classified information. Users should not file classified information through EOIR’s electronic filing application, and the 12 Any system outage announced three or fewer business days prior to the start of the outage will be treated as an unplanned outage. VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 application does not change the users’ or the agency’s responsibilities related to classified information. Users would need to file any classified information by paper and follow existing procedures for the filing of classified information. See EOIR, Operating Policies and Procedures Memorandum 09–01, Classified Information in Immigration Court Proceedings (Feb. 5, 2009), https://www.justice.gov/sites/default/ files/eoir/legacy/2009/02/11/09-01.pdf. EOIR immigration court staff will maintain a paper record for any filing that contains classified information. 6. Receipt and Rejection of Filings EOIR also proposes to move and update the ‘‘filing’’ definition currently located in 8 CFR 1003.13 to the general definition section in 8 CFR 1001.1 so that it will apply to both the immigration courts and the BIA. That proposed definition further explains when both electronic and paper filings are deemed filed and makes clear that improper filings that are rejected are not deemed ‘‘filed.’’ 13 See generally Immigration Court Practice Manual, at 33–34, 38–40; BIA Practice Manual, at 31–33, 34. The bases for rejecting filings track those already applied by the BIA and the immigration courts as outlined in each’s respective practice manual. See Immigration Court Practice Manual, at 33–34, 38–40; BIA Practice Manual, at 31–334. B. Service This rulemaking also proposes to change how service of process is accomplished in cases before the immigration courts and the BIA. Currently, the parties must simultaneously serve on the opposing party a copy of all documents filed with the immigration courts and the BIA. See, e.g., 8 CFR 1003.3(a)(1), (c)(1), 1003.23(b)(1)(ii), 1003.32(a). This service must be accomplished in person or by first-class mail. See 8 CFR 1003.32(a), BIA Practice Manual, at 36. Similarly, under the current regulations, the immigration courts and the BIA must serve copies of court documents, such as orders, notices, and decisions, 13 Consistent with analogous state laws, the proposed definition also recognizes a discretionary safety valve to allow an individual whose fee waiver request is denied to either pay the fee or resubmit a new fee waiver request within 10 days before the BIA or an immigration judge will reject the filing as improper. See, e.g., Cal. Govt. Code 68634(g) (‘‘If an application [for a fee waiver] is denied in whole or in part, the applicant shall pay the court fees and costs that ordinarily would be charged, or make the partial payment as ordered by the court, within 10 days after the clerk gives notice of the denial, unless within that time the applicant submits a new application’’). PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 78245 in person or by mail. See, e.g., 8 CFR 1003.1(f), 1003.37(a). In this proposed rule, EOIR proposes to move the ‘‘service’’ definition currently located in 8 CFR 1003.13 to the general definition section in 8 CFR 1001.1 so that it will apply to both the immigration courts and the BIA. EOIR also proposes updates to various crossreferences to service of process accordingly. In order to provide a simpler and more efficient filing process, EOIR proposes to complete service electronically on behalf of the parties for all cases in which both parties are using electronic filing. When a party successfully uploads a document to EOIR’s electronic filing application and the other party is also using electronic filing in that case, EOIR’s application will send the parties an electronic notification that the eROP has been updated. This will simplify the filing process for electronic filers by only requiring them to file their documents with EOIR in eligible cases rather than needing to execute multiple mailings to complete service requirements. On the other hand, if another party is not participating in electronic filing for that particular case, EOIR’s electronic filing application will alert the user that the opposing party is not participating in electronic filing for that particular case and remind the filer of the responsibility to complete service of process on the opposing party. Consistent with existing practice, the filer must include a certificate of service with each filing as proof of completed service on the opposing party. EOIR also proposes to update the ‘‘service’’ definition to allow parties and EOIR the option to complete service electronically. In situations where the parties need to complete service outside of the electronic filing application, the parties may complete service electronically,14 or by personal or mail service, which are the current options for completing service. EOIR anticipates that this will provide significant efficiencies to the parties by eliminating the need to print and mail documents to each other. EOIR further proposes to serve EOIRgenerated documents, such as orders, decisions, and notices, by electronic notification to parties that are participating in electronic filing. This notification will constitute completed service and begin the appeal clock, if applicable. If a party is not participating 14 The DHS, Immigration and Customs Enforcement (‘‘ICE’’), Office of the Principal Legal Advisor currently accepts electronic service through their eService portal. For more information, please visit https://eserviceregistration.ice.gov/. E:\FR\FM\04DEP1.SGM 04DEP1 78246 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules in electronic filing, EOIR will continue to serve EOIR-generated documents in person or by mail on that party. In order for EOIR to effectuate electronic service, the parties must maintain a valid email address within the eRegistry application. If a user’s email address changes, the user must immediately update the relevant eRegistry account and file a new Form EOIR–27 or EOIR–28, as applicable, in each case with the updated email address. EOIR will consider service completed when the electronic notification is delivered to the last email address on file provided by the user, similar to the existing paper mail service provision for Notices to Appear and hearing notices. Cf. INA 239(c), 8 U.S.C. 1229(c) (‘‘Service by mail under this section shall be sufficient if there is proof of attempted delivery to the last address provided by the alien . . . .’’). C. Signatures This rulemaking proposes to provide standards for signatures. With this proposed rule, EOIR proposes to allow four types of signatures, depending on the document being filed and the method by which the document is being filed: (1) Original, handwritten ink signatures; (2) encrypted, digital signatures; (3) electronic signatures; and (4) conformed signatures.15 Thus, this proposed rule would incorporate existing EOIR policy regarding signatures, Policy Memorandum 20–11, Filings and Signatures (Apr. 3, 2020), https://www.justice.gov/eoir/page/file/ 1266411/download (last visited Nov. 19, 2020), while also allowing conformed signatures in certain circumstances. First, EOIR proposes to accept documents with original, handwritten ink signatures, encrypted digital signatures, or electronic signatures, whether filing electronically or on paper. If filed electronically, the document may be signed with an encrypted, digital signature; an electronic signature; or an original, handwritten ink signature and then scanned for upload to the electronic 15 Digital signatures are defined as signatures performed via a recognized system that provides Personal Key Infrastructure (PKI) from the signer at the time of signing. EOIR Policy Memorandum 20– 11, Filings and Signatures (Apr. 3, 2020), https:// www.justice.gov/eoir/page/file/1266411/download (last visited Nov. 19, 2020). Electronic signatures are defined as signatures performed using a device that does not provide PKI at the time of signing (e.g., stylus and touchpad). Id. at 1 n.2. Any type of signature—wet, digital, or electronic—may be subject to a challenge in immigration proceedings to its authenticity, though EOIR expects that any such challenge will be brought only in good faith. Id. at 2. Additionally, any type of signature may be authenticated, as necessary, using any means identified in Federal Rule of Evidence 901. Id. VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 filing application. If a user signs a document using an encrypted digital signature but EOIR’s electronic filing application is unavailable, the user may print the document with the digital signature and paper file the document with the immigration court. Second, EOIR proposes to allow users to sign their own name with a conformed signature on documents filed through EOIR’s electronic filing application. Conformed signatures will not be accepted for anyone other than the user who is submitting the document. Conformed signatures typically consist of the user typing ‘‘/s/’’ and the user’s name into the signature block. For example: ‘‘/s/John Smith.’’ By signing into the electronic filing application, the user has demonstrated that they have completed identity verification through the eRegistry process described in Section III.A.2., thereby allowing the use of a conformed signature. EOIR seeks public comment as to whether this safeguard, which employs all Departmentmandated information security protocols, is sufficient, whether there are other more effective methods for identity-proofing online filers who do not have the same financial or U.S. ‘‘footprint’’ that can be used for remote verification of the person’s identity, or whether the user should need to reinput credentials at the time of each electronic filing. These proposed signature rules would be subject to any specific form, application, or document signature requirements. For example, if an application’s instructions require an original, handwritten ink signature, then the user must follow the application instructions instead of the proposed signature allowances in this proposed rule. In practice, if the user was electronically filing, the user would sign the application in ink and then scan and electronically file the application with EOIR. The user would also be required to make the original available upon request. filing fee receipt as part of their electronic submission. In contrast, the BIA directly accepts payments for certain documents that require a fee. See generally 8 CFR 1003.8. In October 2020, EOIR launched the EOIR Payment Portal, which allows users to make electronic payments for filings at the BIA, as provided in 8 CFR 1003.8. See EOIR, EOIR Payment Portal (Nov. 19, 2020), https:// epay.eoir.justice.gov/. As a result, this rulemaking proposes to broaden the references to payments at the BIA in 8 CFR 1003.2 and 1003.3 in order to account for these changes. D. Electronic Payments A. Regulatory Flexibility Act EOIR imposes a fee for filing many types of documents. See generally 8 CFR 1103.7. Currently, the immigration courts do not directly accept fee payments for any documents that require a fee. Instead, filers must make these fee payments to DHS and then provide proof of the payment to the immigration courts. This proposed rule does not change this payment structure at the immigration courts. Under this proposed rule, electronic filers would be able to submit a scanned copy of the The Department has reviewed this proposed rule in accordance with the Regulatory Flexibility Act and has determined that this proposed rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b). As proposed, this rulemaking regulates attorneys and accredited representatives, most of whom qualify as ‘‘small entities’’ under the Regulatory Flexibility Act. See 5 U.S.C. 601(3)–(4), (6). However, all attorneys and PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 E. Duplicate Copies This rulemaking proposes to update 8 CFR 1003.23 to remove the requirement for parties to file multiple ‘‘in duplicate’’ copies of a motion to reopen or a motion to reconsider if they are filing electronically. However, in duplicate copies would still be required for paper filings. F. Technical Amendments When updating existing regulatory sections, this rulemaking also proposes a number of technical amendments. These include updating outdated references from ‘‘the Service,’’ ‘‘Service counsel,’’ and ‘‘Office of the District Counsel’’ to ‘‘DHS,’’ ‘‘DHS counsel,’’ and ‘‘ICE Office of the Principal Legal Advisor’’ in 8 CFR 1001.1, 1003.1, 1003.2, 1003.3, 1003.23, 1003.31, 1214.2, 1240.2, 1240.10, 1240.11, 1240.13, 1240.26, 1240.32, 1240.33, 1240.48, 1240.49, 1240.51, 1245.21, and 1246.5, and lowercasing terms ‘‘Immigration Judge’’ and ‘‘Immigration Court’’ in 8 CFR 1003.2, 1003.17, 1003.23, 1003.31, 1003.32, 1003.37, 1003.38, and 1208.4 consistent with regulatory style guidelines. The rulemaking also proposes to update a reference at 8 CFR 1003.1(f) regarding service on a representative from part 292, which is a DHS regulation, to part 1292, which is an EOIR regulation. IV. Regulatory Requirements E:\FR\FM\04DEP1.SGM 04DEP1 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules accredited representatives already are required to enroll in eRegistry in order to practice before EOIR. Thus, they are already eligible to participate in the electronic filing process, which is currently being made available in many locations through a voluntary pilot program. This proposed rule, when finalized, would make the use of electronic filing mandatory in eligible cases. The Department anticipates that the adoption of electronic filing will lead to substantial net cost savings for these attorneys and accredited representatives because they would no longer be required to bear the burdens and expenses of mailing or serving paper copies in each of their cases for filings submitted to the immigration court or to the BIA or for service of process on opposing counsel. Therefore, this proposed rule will not have an adverse economic effect on attorneys or accredited representatives, but instead is expected to result in significant cost savings. A more detailed analysis of the costs and benefits of this proposed rule are detailed in Section IV.D. B. Unfunded Mandates Reform Act of 1995 This proposed 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. Congressional Review Act This proposed rule is not a major rule as defined by section 804 of the Congressional Review Act. 5 U.S.C. 804(2). This proposed rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreignbased companies in domestic and export markets. D. Executive Order 12866 and Executive Order 13563 (Regulatory Planning and Review) 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, VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 environmental, public health, and safety effects, distributive impacts, and equity). The Office of Information and Regulatory Affairs of the Office of Management and Budget (‘‘OMB’’) has determined that this proposed rule is not a ‘‘significant regulatory action’’ under section 3(f) of Executive Order 12866. It will neither result in an annual effect on the economy greater than $100 million nor adversely affect the economy or sectors of the economy. It does not pertain to entitlements, grants, user fees, or loan programs, nor does it raise novel legal or policy issues. It does not create inconsistencies or interfere with actions taken by other agencies. Accordingly, this proposed rule is not a significant regulatory action subject to review by OMB pursuant to Executive Order 12866. Executive Order 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, and other advantages; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of using the best available methods to quantify costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 13563. 1. ECAS-Related Costs and Savings The Department estimates that implementation of ECAS will result in a total savings of $68,105,250 over the first 10 years of its implementation.16 Specifically, the Department estimates that electronic filing will cost EOIR $32,896,179 over 10 years, primarily due to increased technology costs to implement and maintain the new technology infrastructure. These costs are outweighed, however, by the predicted savings to the public— $101,001,429, which primarily relate to cost savings from no longer having to file documents via mail or in person. These costs and savings for EOIR and the public are discussed in further detail individually below. 16 All dollar amounts cited in this discussion are calculated to correspond with what would have been the value in December 2016 using the U.S. Bureau of Labor Statistics (BLS) Consumer Price Index inflation calculator found at https:// www.bls.gov/data/inflation_calculator.htm (last visited Nov. 19, 2020). PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 78247 TABLE 1—OVERVIEW OF TOTAL COST AND SAVINGS: EOIR AND THE PUBLIC 17 Entity Savings/costs EOIR ..................................... OCIJ .............................. BIA ................................. OIT ................................. OGC .............................. Public .................................... ($32,896,179) 12,910,888 2,710,950 (51,275,937) 2,757,920 101,001,429 Total ............................... 68,105,250 Despite the financial cost to EOIR to develop and maintain the technology for ECAS, the Department believes that electronic filings will be a net benefit for the agency. During the electronic filing pilot program, EOIR has already begun to realize efficiencies in case processing. For example, in Fiscal Year (‘‘FY’’) 2019 DHS initiated 37,074 cases electronically (out of 465,790 cases initiated in the same time period), and 161 bond proceedings were initiated electronically. According to internal pilot metrics, charging documents filed electronically at the pilot sites are being processed nearly 10 times faster than charging documents filed in paper. Similarly, the time it takes to receive and process a non-charging supporting document is approximately 25 percent faster than processing a paper-filed supporting document. This represents a significant savings in terms of court staff time and in terms of the overall processing time for the 2,574 electronically filed motions that EOIR has received during the ECAS pilot program. This proposed rule will only increase these time savings when all attorneys and accredited representatives begin filing documents electronically. a. Office of the Chief Immigration Judge The Department estimates that implementation of the proposed rule will reduce the immigration courts’ costs by the equivalent of approximately $12.9 million over the first 10 years of implementation. This reduction includes the cost of labor that will be reallocated to other tasks due to the more efficient processing of electronic documents. Cost changes for the courts will be realized primarily in initial case processing; individual hearing processing; and processing and shipping costs for changes of venue, appeals, and records retirement. To reach its estimates, the Department determined the costs for adjudicating a 17 Savings listed are an overestimation as they include all filings, rather than only those filings that can be done electronically at this time (i.e., the savings include filings by pro se respondents who cannot yet use ECAS). E:\FR\FM\04DEP1.SGM 04DEP1 78248 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules must scan the paper documents into the eROP. However, this increase in cost will be outweighed by the time savings, calculated in terms of the cost of labor, for individual hearing processing and change of venue processing, as filing becomes more expeditious for court staff in each individual case. Additionally, annual shipping costs will be reduced, since changes of venue, appeals, and records retirement transfers will occur electronically instead of manually shipping the paper ROP to another court, the BIA, or the Federal Records Center. Cost changes have been calculated with the assumption that all other processes remain the same. However, eROPs enable the possibility of further cost savings through more efficient case adjudication. For example, widely available eROPs may enable immigration judges to hear a case via video teleconference (‘‘VTC’’) almost instantly. Under the current paper ROP system, the ROP needs to be shipped to the immigration judge’s location before a VTC hearing can be held. In contrast, an eROP could enable a judge to open any eROP and hear a case immediately. This new paradigm has the potential to improve the efficiency of workload adjudication by judges and their staff. EOIR may also realize savings through the reduced growth of storage requirements at court locations. EOIR currently stores paper ROPs at immigration courts, utilizing valuable storage space in courtrooms, offices, and hallways. Conversion to an eROP system may ease the strain on the system as new pending cases will have an eROP that will not require physical TABLE 2—OFFICE OF THE CHIEF storage space. With the information IMMIGRATION JUDGE COST SAVINGS currently available, storage space utilization and savings cannot be Expected cost Year specifically calculated. However, this savings regulation will likely reduce costs for 1 ............................................ $140,304 the immigration courts by allowing 2 ............................................ 526,622 current space to be used for functional 3 ............................................ 816,841 purposes, rather than storage. 4 ............................................ 1,115,708 5 ............................................ 1,320,399 b. Board of Immigration Appeals typical case after the implementation of the proposed regulation. Using this methodology, the Department identified and analyzed three separate scenarios: (1) Legacy paper ROPs that were started but not completed before this proposed rule; (2) eROPs for pro se respondents that are submitted in paper and scanned by court staff; and (3) eROPs for represented respondents that are completely electronic. The Department then estimated the economic impact of the proposed regulation on the immigration courts for each of the next 10 years by calculating the average costs for each of the three scenarios above; multiplying each scenario’s average cost by the expected annual number of cases received for the immigration courts and expected annual hearings for the immigration courts in each scenario over the next decade; separately calculating the baseline cost (i.e., the cost without mandatory electronic filing), using existing time estimates and labor rates, for the next 10 years; and subtracting the postregulation cost from the baseline cost for each of the next 10 years. This economic impact reflects labor hours that will be saved in terms of dollars. In actuality, labor can be reallocated to higher-impact tasks, and more efficient labor usage could offset future hiring and resource needs, which may lead to more quantifiable realized savings. As shown in Table 2, the expected cost savings increase every year. This is a result of legacy paper ROPs leaving the system as cases are adjudicated and a higher percentage of the future pending cases having mandatory eROPs as a result of this regulation. 6 ............................................ 7 ............................................ 8 ............................................ 9 ............................................ 10 .......................................... 1,500,104 1,666,355 1,816,269 1,947,925 2,060,361 The Department also estimates that implementation of the proposed regulation will reduce the BIA’s costs by approximately $2.7 million over the first Total ............................... 12,910,888 10 years of implementation. Cost changes for the BIA will be realized in Since all paper-filed documents, per three main process areas: Scanning pro this new regulation, will be scanned and se ROPs; receiving ROPs from the maintained in an eROP, initial case immigration courts; and returning ROPs processing is estimated to become to the immigration courts. marginally more expensive as court staff VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 TABLE 3—BIA COSTS SAVINGS Year Expected cost savings 1 ............................................ 2 ............................................ 3 ............................................ 4 ............................................ 5 ............................................ 6 ............................................ 7 ............................................ 8 ............................................ 9 ............................................ 10 .......................................... ($23,064) 176,822 201,808 250,818 285,414 314,243 342,112 367,098 388,240 407,459 Total ............................... 2,710,950 The impacts to the BIA largely mirror the immigration courts in that scanning paper filings into the eROP is likely to increase costs by increasing staff workload. Further, the largest cost savings are likely to come from reduced shipping. The BIA’s process requires that all ROPs sent to the BIA from the immigration court must be shipped back to the court upon completion of the appeal. Shipping costs will be eliminated for future eROPs because they will be transferred electronically, reducing costs for the BIA. c. Office of Information Technology The Department estimates that the implementation of the proposed rule will increase EOIR’s Office of Information Technology’s (‘‘OIT’’) costs by a total of approximately $51.3 million across the first 10 years of implementation. These costs are due to the additional effort required to develop, deploy, and maintain the electronic infrastructure that serves as the backbone for electronic filing. Because OIT developed the tools and processes necessary for the implementation of mandatory electronic filing throughout EOIR, it is the largest driver of quantifiable costs from mandatory electronic filing implementation. The deployment and training for mandatory electronic filing will be particularly resource-intensive for OIT, as it will be responsible for the deployment and maintenance of the hardware and software necessary to digitize and store documents along with delivering training to court staff. Costs related to electronic filing deployment are estimated to be approximately $21.7 million, including $2.3 million in hardware purchases, $1.7 million in travel to deliver training and install systems, and $3.4 million in external services, software, and licensing for necessary cloud computing services. E:\FR\FM\04DEP1.SGM 04DEP1 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules 78249 TABLE 4—OIT ELECTRONIC FILING DEPLOYMENT COSTS Category Year 1 Year 2 Total External Services (e.g., MS Azure Premier Access) .................................................................. Software ....................................................................................................................................... Travel ........................................................................................................................................... Labor/Hardware 18 ........................................................................................................................ Support Labor: Program Support .................................................................................................................. Training ................................................................................................................................. Service Desk/Operations ...................................................................................................... Product Labor: eROP .................................................................................................................................... Electronic Filing .................................................................................................................... Hardware ..................................................................................................................................... $999,429 625,988 830,295 11,316,689 $999,429 726,171 830,295 5,355,028 $1,998,858 1,352,159 1,660,590 16,671,717 1,717,020 754,782 482,417 900,298 431,820 482,417 2,617,318 1,186,602 964,834 2,699,130 3,741,362 1,921,978 1,322,681 1,833,416 384,396 4,021,811 5,574,778 2,306,374 Total ...................................................................................................................................... 13,772,401 7,910,923 21,683,324 Costs are estimated to be highest in the first year of the deployment, as hardware is purchased, software systems are finalized and implemented, and training is delivered to court staff. Costs are estimated to decrease by over 40 percent in the second deployment year as OIT completes training court staff and transitions to a steady state of software and hardware maintenance. The cost reductions in the second year of deployment will be driven by a 47 percent reduction in labor costs and an 80 percent reduction in hardware costs. Once training and deployment are complete, OIT’s costs will stabilize. While OIT will no longer incur costs related to training court staff, OIT will be using more labor than before mandatory electronic filing. This is due to the additional staff necessary to provide help desk support to the courts and IT services related to the electronic filing system. OIT will also continually accrue expenses for cloud computing platform licensing and hardware repairs, upgrades, and replacements required to support electronic filing. OIT estimates that overall costs will increase by approximately 1 percent each year, primarily driven by increases in labor costs. These ongoing expenses will represent the new steady state for OIT. The eight years following completion of the deployment phase are estimated to cost an additional $29.6 million due to mandatory electronic filing. TABLE 5—OIT ELECTRONIC FILING STEADY STATE COSTS Category Year 3 Year 4 . . . 19 Year 10 Total External Services (e.g., MS Azure Premier Access) ........... Software ............................................................................... Travel ................................................................................... Labor/Hardware ................................................................... Support Labor: Program Support .......................................................... Training ......................................................................... Service Desk/Operations .............................................. Products Labor: eROP ............................................................................ Electronic Filing ............................................................ Electronic Filing Hardware ................................................... $999,429 366,521 0 2,227,541 $999,429 366,521 0 2,255,993 $999,429 366,521 0 2,443,930 $7,995,430 2,932,169 0 18,665,013 239,564 172,728 482,417 239,564 172,728 482,417 239,564 172,728 482,417 1,916,512 1,381,825 3,859,334 466,808 481,628 384,396 480,812 496,076 384,396 573,312 591,513 384,396 4,150,211 4,281,966 3,075,166 Total .............................................................................. 3,593,491 3,621,943 3,809,880 29,592,613 As mandatory filing is implemented and electronic filing progresses, the Department anticipates that this will lead to significant additional efficiencies in case processing. This may include more expeditious case scheduling and adjudication, improved data quality, increased performance monitoring and tracking, augmented data analytics capabilities, and better alignment with information storage best practices. There may also be further 18 Labor/Hardware represents a total of the individual categories of support labor, product labor, and hardware. VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 The Department estimates that the implementation of the proposed rule will increase efficiencies for the EOIR Office of the General Counsel (‘‘OGC’’) programs. For example, digitization of files will allow for more expeditious compliance with Freedom of Information Act (‘‘FOIA’’) and other requests for information, reducing the time burden of such activities on EOIR staff. Specifically, the Department estimates that costs associated with FOIA compliance will decrease by approximately $2.8 million across the first 10 years of implementation. These savings will be realized through reduced shipping costs in the FOIA response process as more ROPs are accessible 19 Years 5 through 9 are not included in this visual, but are factored into the totals calculation. OIT estimates that labor costs will increase by 3 percent per year. Non-labor costs, such as hardware, software, and external services, remain constant through each year. impacts to EOIR’s internal datainformed decision-making process, as the digitization of the data may allow for increased analysis of the relationship between various practices, procedures, and outcomes. d. Office of General Counsel PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\04DEP1.SGM 04DEP1 78250 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules electronic filing. In FY 2018, EOIR’s immigration courts received 311,761 paper filings and 2,555 electronic filings,21 and the BIA received 49,522 paper filings.22 While EOIR does not keep data regarding what methods (e.g., Federal Express (‘‘FedEx’’), United States Postal Service (‘‘USPS’’), hand delivery by an attorney’s office or a pro se party, or local courier) are used to file paper documents with EOIR and to serve those filings on the opposing party, anecdotal evidence points to filings with the immigration courts and the BIA and service on the opposing party typically being sent using FedEx TABLE 6—OGC COST SAVINGS or courier to ensure filings are timely. Expected cost This is particularly true for filings with Year 20 savings the BIA, because the filer must ensure actual receipt by the BIA in Falls 1 ............................................ $0 2 ............................................ 0 Church, Virginia no later than the close 3 ............................................ 60,052 of business of the clerk’s office on the 4 ............................................ 203,084 established deadline. To analyze the cost savings related to 5 ............................................ 295,661 6 ............................................ 360,279 these filings that electronic filing would 7 ............................................ 404,478 have on the public, EOIR considered the 8 ............................................ 443,370 average costs of sending filings through 9 ............................................ 479,318 FedEx and USPS, the hourly rates for 10 .......................................... 511,678 couriers and immigration attorneys, and Total ............................... 2,757,920 the time savings from avoiding use of the immigration courts’ intra-office mailing systems. Based on these The public may also see the added preliminary estimates and filings from qualitative benefit of more expeditious FOIA compliance, as OGC will not have the previous year, if filers used FedEx for one-third of filings and used USPS to wait for records to be shipped for two-thirds of filings, electronic filing between locations to satisfy FOIA would have saved filers $38,778.55 in requests and will instead be able to FedEx and USPS costs in the five pilot search and access the records courts in FY 2018.23 This is compared electronically. to a cost of $1,959,360.15 in FedEx e. The Public costs 24 and $2,772,396.55 in USPS filing costs 25 (assuming one-third The benefits to the public are high as filings via FedEx and two-thirds filings well. Parties will be able to file via USPS) in the other 55 courts. These documents at any time of day from any location with internet, thereby reducing estimates are based on an $18.85 postage costs and the need to physically 21 These numbers represent the paper and appear at an immigration court during electronic filing of initial Forms I–862, Notice to business hours. For many parties, this Appear, and I–863, Notice of Referral to the will be a substantial benefit, as the Immigration Judge, by DHS at the immigration nearest immigration court may be hours courts nationwide for the fiscal year. EOIR does not have data regarding the number of paper vs. away. The parties will also be able to electronic filings directly by aliens in proceedings view the eROP electronically, providing or their representatives, such as the relative number instant access to necessary documents of paper vs. electronically filed motions, applications for relief or protection, or evidence and eliminating the need to appear at Accordingly, this analysis uses the number the immigration court to view the paper packets. of electronic and paper filings by DHS as a proxy record. Further, parties will save on for those by the aliens and their representatives paper and toner costs required to print since EOIR does not have similar data for that population but would expect the percentage of copies of filings, and costs associated paper and electronic to be the same for both. with required process service. 22 See EOIR, Statistics Yearbook: Fiscal Year 2018 The Department believes that the (Aug. 30, 2019), https://www.justice.gov/eoir/file/ biggest savings to the parties before 1198896/download (last visited Nov. 19, 2020). As with the immigration courts, the Department uses EOIR will be from reduced costs the number of cases filed at the BIA as a proxy for associated with mailing or handthe number of filings at the BIA because the delivering filings that would have been Department does not have specific data regarding incurred without the implementation of the number of individual filings by the parties. electronically instead of requiring storage retrieval and shipping. As electronic filing becomes more widespread, the proportion of FOIA requests that can be satisfied through electronic records searches will proportionally increase. A higher percentage of the future pending caseload will have mandatory eROPs as a result of this regulation, which will cause the ratio of eROPs to paper ROPs, and thus expected cost savings, to increase over time, as detailed in Table 6. 20 FOIA volume is estimated at 50,000 per year, an approximation based on EOIR’s FY 2018 FOIA volume. VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 23 852 filings * $18.85 average FedEx cost + 1,703 filings * $13.34 average USPS cost. 24 103,920 filings * $18.85 average FedEx cost. 25 207,841 filings * $13.34 average USPS cost. PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 average FedEx filing rate ($8.57 average Express Saver cost + $20.03 average second day cost + $27.97 overnight cost, divided by three) and a $13.34 average USPS filing rate ($7.75 average priority mail + $28.59 average priority mail express + $3.68 first-class parcel, divided by three). The Department notes that this savings is likely an underestimate due to the tendency for many filers to use next day service. According to the U.S. Bureau of Labor Statistics, the mean hourly wage for couriers, such as those the individuals law firms may hire to delivery documents to the immigration court, is $14.13. U.S. Bureau of Labor Statistics, Occupational Employment Statistics: Occupational Employment and Wages, May 2018: 43–5021 Couriers and Messengers, https://www.bls.gov/oes/ 2018/may/oes435021.htm (last updated Mar. 29, 2019).26 Further, if an attorney makes the trip to the immigration court or to the BIA to handle the filing, the average cost would be $66.54 for one hour of work.27 Assuming that approximately one-quarter of paper filings are handled via a courier, onequarter of paper filings are handled via an attorney,28 and one-half are filed using USPS or FedEx, with two-thirds of those via USPS and one-third via FedEx, the cost savings to the public of eFiling in the five pilot courts was approximately $70,917.24 ($8,028.85 for FedEx 29 + $11,360.42 for USPS 30 + $42,502.43 for the attorneys 31 + $9,025.54 for the couriers 32). Overall, the Department’s estimates predict an annual savings to the public from electronic filing before the immigration courts and the BIA of approximately $10,100,142.88 ($70,917.24/2,555 filings = $27.76; $27.76 * (311,761 + 2,555 + 49,522 = 363,838 total filings)). Over the course of 10 years, these savings would equal $101,001,428.80 if the annual number of filings remains constant. The Department, however, expects that the true savings will be higher as EOIR hires additional immigration judges and 26 $14.72 in May 2018 is equivalent to $14.13 in December 2016. 27 U.S. Bureau of Labor Statistics, Occupational Employment Statistics: Occupational Employment and Wages, May 2018: 23–1011 Lawyers, https:// www.bls.gov/oes/2018/may/oes231011.htm (last visited Nov. 19, 2020) (stating the mean hourly wage in May 2018 was $69.34). $69.34 in May 2018 is equivalent to $66.54 in December 2016. 28 This calculation further assumes that the filings would require one hour of time by the attorney or courier. 29 426 filings * $18.85 average FedEx cost. 30 852 filings * $13.34 average USPS cost. 31 639 filings * $66.54 mean hourly attorney wage. 32 639 filings * $14.13 mean hourly courier wage. E:\FR\FM\04DEP1.SGM 04DEP1 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules opens additional immigration courts, expanding the annual case processing capacity. See, e.g., EOIR, Executive Office for Immigration Review Adjudication Statistics: New Cases and Total Completions (Oct. 13, 2020), https://www.justice.gov/eoir/page/file/ 1060841/download (last visited Nov. 19, 2020) (showing that initial case completions increased from 195,106 in 78251 FY 2018 to 276,918 in FY 2019). Further, additional savings are expected based on gas and tolls, paper, toner, and other office supplies. TABLE 7—COST AND SAVINGS FOR PUBLIC (FY18) 33 FedEx express saver FedEx envelope rates 34 FedEx Local (0–150 miles) .......................................................................................................... FedEx Regional (151–600 miles) ................................................................................................ FedEx National (601+ miles) ....................................................................................................... Average Cost ............................................................................................................................... Costs of 1⁄3 OCIJ Paper Filings (103,920) .................................................................................. Total Costs of 1⁄3 BIA Paper Filings (16,507) .............................................................................. Savings from eFilings (2,555) ...................................................................................................... USPS rates by zone 35 $7.64 8.16 9.90 8.57 890,250.86 141,412.82 21,887.83 Priority mail 36 USPS Zone 1&2 (0–150 miles) ................................................................................................... USPS Zone 3 (151–300 miles) ................................................................................................... USPS Zone 4 (301–600 miles) ................................................................................................... USPS Zone 5 (601–1,000 miles) ................................................................................................ USPS Zone 6 (1,001–1,400 miles) ............................................................................................. USPS Zone 7 (1,401–1,800) ....................................................................................................... USPS Zone 8 (1,801+) ................................................................................................................ Average Cost ............................................................................................................................... Costs of 2⁄3 OCIJ Paper Filings (207,841) .................................................................................. Costs of 2⁄3 BIA Paper Filings (16,507) ....................................................................................... Savings from eFilings (2,555) ...................................................................................................... $6.95 7.28 7.42 7.65 7.83 8.21 8.90 7.75 1,610,468.25 255,816.50 19,767.6 FedEx 2 day $17.83 19.34 22.92 20.03 2,081,524.28 330,641.89 51,176.65 Priority express 37 $24.43 24.66 25.50 28.47 30.37 32.27 34.45 28.59 5,942,758.49 943,983.65 73,054.75 FedEx standard overnight $23.53 25.80 34.57 27.97 22,906,305.32 461,655.09 71,454.83 First-class parcel 38 $3.52 3.57 3.62 3.66 3.71 3.76 3.89 3.68 763,962.91 121,352.48 9,391.45 Documents will also be served by electronic notification where applicable, which will provide near-instantaneous service. This will particularly benefit the parties when EOIR electronically serves orders and decisions on parties participating in electronic filing, as the appeal clock begins to run when the order is sent. This will allow the parties to begin preparing for any potential appeals immediately without having to wait for the order or decision to arrive in the mail as is currently the practice. These potential benefits are reflected in the private bar’s long-standing requests for electronic filing with EOIR. See, e.g., EOIR, EOIR/AILA Liaison Meeting (Sept. 26, 2002), https:// www.justice.gov/eoir/eoir-aila-sep262002. (last visited Nov. 19, 2020). In addition, since the July 2018 launch of the electronic filing pilot program, more than 15,000 attorneys have signed up for ECAS, indicating a strong interest in electronic filing. Moreover, at the pilot sites, approximately half of all active attorneys and accredited representatives in those sites have signed up for the pilot despite having no obligation to participate. This rulemaking also proposes changes to law student and law graduate filing and accompaniment rules. First, EOIR believes that there will be minimal, if any, costs associated with requiring the supervisor to electronically file documents with EOIR, rather than the law student or law graduate filing on paper. And, if there are any associated costs, they will be outweighed by the substantial benefits of electronic filing, including immediate access to the eROP and the ability to file at any time of day from any location with internet access without the cost or reliance on mail carriers. As to the proposed accompaniment change, EOIR does not maintain data on how many law students appear in immigration court or how many of those appear without a supervisor present, though it understands that in most cases, a supervisor does accompany the law student. Moreover, regardless of EOIR’s rules, in many cases a supervisor is required to accompany the law student or graduate in order to comply with applicable state bar rules. See, e.g., Cal. R. 9.42(d)(3) (allowing certified California law students to appear ‘‘on behalf of the client in any public trial, hearing, arbitration, or proceeding, or before any arbitrator, court, public agency, referee, magistrate, commissioner, or hearing officer, to the extent approved by such arbitrator, court, public agency, referee, magistrate, commissioner, or hearing officer,’’ provided that, among other requirements, the certified law student ‘‘[p]erforms the activity under the direct 33 In order to estimate these costs for the public, the Department looked to FedEx and USPS rates as a general representation for the costs of paper filing via mail or delivery service as they are the two most commonly used delivery services for filings with the Department. 34 See FedEx, FedEx One Rate Pricing (effective Jan. 7, 2019), available at https://www.fedex.com/ content/dam/fedex/us-united-states/services/ OneRate-Pricing_2019.pdf (last visited Nov. 19, 2020). As noted, supra, in Footnote 16, these FedEx prices have been discounted to reflect their values as of December 2016. 35 This chart does not include the USPS rates for zone 9 as there are no immigration court locations in the Republic of Palau, Federated States of Micronesia, and the Republic of the Marshall Islands. See USPS Office of Inspector General, Audit Report Management of Postal Zones, at 4 (March 25, 2019), available at https:// www.uspsoig.gov/sites/default/files/document- library-files/2020/19RG009MS000-20.pdf (last visited Nov. 19, 2020). 36 These rates correspond with the USPS priority mail rates for letters, large envelopes, and parcels that do not exceed one pound. 37 These rates correspond with the USPS priority mail express rates for letters, large envelopes, and parcels that do not exceed 0.5 pound. 38 These rates correspond with the USPS first class package service rates for retail parcels that do not exceed one ounce. VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 2. Costs and Savings Related to Rules Regarding Law Student and Law Graduate Filings PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\04DEP1.SGM 04DEP1 78252 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules and immediate supervision and in the personal presence of the supervising attorney’’). EOIR recognizes that in rare cases in which a law school clinic or similar program does not currently send a supervising attorney to every hearing at which a law student or law graduate appears, there may be some increased cost. EOIR expects those increased costs to be minimal, however, due to the rarity of cases in which law students and law graduates appear unsupervised, as well as the availability of telephonic appearances.39 Further, EOIR believes that the benefits of ensuring that every case has a single licensed representative responsible for service of process and ultimate representation in the case outweighs the potential costs associated with the increased accompaniment requirements.40 E. Executive Order 13132 (Federalism) This proposed 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 proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. F. Executive Order 12988 (Civil Justice Reform) This proposed rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. 39 Due to the current outbreak of COVID–19, many immigration judges have adopted standing orders allowing practitioners to appear by telephone without the need for filing a motion. See Immigration Court Practice Manual, at Appx. R. Although EOIR cannot predict how long such standing orders will remain in effect, it reiterates that nothing in this proposed rule precludes a law school clinic from filing a motion for a telephonic appearance in order to reduce the need for inperson appearances. 40 Although most law school clinics and similar programs only take cases at immigrations courts that are located in nearby geographic proximity, both to minimize operational and logistical difficulties and to avoid the complications of complying with practice rules for different state jurisdictions, EOIR also recognizes that there may be unique situations in which a law school clinic takes a case that requires atypical travel arrangements. In that situation, coupled with the similarly unique situation of an unsupervised law student appearing alone on behalf of a respondent, EOIR acknowledges there may be an increase in cost associated with this rule, but the benefit of the rule outweighs any cost associated with this highly unlikely situation. VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 G. Paperwork Reduction Act This rulemaking does not propose new or revisions to existing ‘‘collection[s] of information’’ as that term is defined in the Paperwork Reduction Act of 1995, Public Law 104– 13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320. List of Subjects 8 CFR Part 1001 Administrative practice and procedure, Immigration. 8 CFR Part 1003 Administrative practice and procedure, Immigration. 8 CFR Part 1208 Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements 8 CFR Part 1214 Administrative practice and procedure, Aliens. 8 CFR Part 1240 Administrative practice and procedure, Immigration. 8 CFR Part 1245 Aliens, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 1246 Administrative practice and procedure, Aliens, Immigration. 8 CFR Part 1292 Administrative practice and procedure, Immigration. Accordingly, for the reasons set forth in the preamble, and by the authority vested in the Director, Executive Office for Immigration Review, by the Attorney General Order Number 410–2020, the Department proposes to amend parts 1001, 1003, 1208, 1214, 1240, 1245, 1246, and 1292 of the Code of Federal Regulations as follows: PART 1001—DEFINITIONS 1. The authority citation for part 1001 continues to read as follows: ■ Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107–296, 116 Stat. 2135; Title VII of Pub. L. 110–229. 2. Amend § 1001.1 by revising paragraph (s) and adding paragraphs (cc), (dd), and (ee) to read as follows: ■ § 1001.1 Definitions. * * * * * (s) The terms government counsel or DHS counsel, in the context of PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 proceedings in which DHS has appeared, mean any officer assigned to represent the DHS in any proceeding before an immigration judge or the Board of Immigration Appeals. * * * * * (cc) The term case eligible for electronic filing means any case that DHS seeks to bring before an immigration court after EOIR has formally established an electronic filing system for that court, or any case before an immigration court or the Board of Immigration Appeals that has an electronic record of proceeding. Any reference to a record of proceeding in this chapter shall include an electronic record of proceeding. (dd) The term filing means the actual receipt of a document by the appropriate immigration court or the Board of Immigration Appeals. (1) An electronic filing that is accepted by the Board or an immigration court will be deemed filed on the date it was submitted. A paper filing that is accepted by the Board or an immigration court will be deemed filed on the date it was received by the Board or the immigration court. A filing that is rejected by the Board or the immigration court as an improper filing will not be deemed filed on the date it was submitted or received. (2) For purposes of paragraph (dd)(1) of this section, an improper filing includes, but is not limited to: (i) If a fee is required, failure to submit a fee receipt or fee waiver request; (ii) If a fee is required, the denial of a fee waiver request by the Board or an immigration judge, provided that the Board or immigration judge, in the adjudicator’s discretion and no more than once per case, may, before rejecting a filing as improper under this paragraph, grant an individual whose fee waiver request is denied up to a maximum of 10 days to either pay the required fee or to file a new request if the initial request was incomplete or insufficient and may toll any applicable deadline by up to a maximum of 10 days accordingly; (iii) Failure to include a proof of service upon the opposing party; (iv) Failure to comply with the language, signature, and format requirements; (v) Insufficient postage or incorrect courier billing information; or (vi) Illegibility of the filing. (vii) If a document is improperly filed but not rejected, the Board or immigration judge retains the authority to take appropriate action. (ee) The term service means physically presenting, mailing, or E:\FR\FM\04DEP1.SGM 04DEP1 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules electronically providing a document to the appropriate party or parties; except that an Order to Show Cause or Notice of Deportation Hearing shall be served in person to the alien, or by certified mail to the alien or the alien’s attorney, and a Notice to Appear shall be served to the alien in person, or if personal service is not practicable, shall be served by regular mail to the alien or the alien’s attorney of record. PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW 3. 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. 4. Amend § 1003.1 by revising paragraph (f) to read as follows: ■ § 1003.1 Organization, jurisdiction, and powers of the Board of Immigration Appeals. * * * * * (f) Service of Board decisions. The decision of the Board shall be in writing. The Board shall transmit a copy to DHS and serve a copy upon the alien or the alien’s representative, as provided in part 1292 of this chapter. * * * * * ■ 5. Amend § 1003.2 by: ■ a. Revising the introductory text of paragraph (g); ■ b. Revising paragraphs (g)(1) and (g)(2)(i) through (iii); and ■ c. Adding paragraphs (g)(4) through (8). The revisions and additions read as follows: § 1003.2 Reopening or reconsideration before the Board of Immigration Appeals. * * * * * (g) Filing procedures. This paragraph applies to the filing of documents related to reopening and reconsideration before the Board. (1) English language and entry of appearance. A motion and any submission made in conjunction with a motion must be in English or accompanied by a certified English translation. If the moving party, other than DHS, is represented, Form EOIR– 27, Notice of Entry of Appearance as Attorney or Representative Before the Board, must be filed with the motion. (2) * * * VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 (i) A motion to reopen or motion to reconsider a decision of the Board pertaining to proceedings before an immigration judge shall be filed directly with the Board. Such motion must be accompanied by a payment in a manner authorized by EOIR or fee waiver request in satisfaction of the fee requirements of § 1003.8. The record of proceeding pertaining to such a motion shall be forwarded to the Board upon the request or order of the Board. (ii) A motion to reopen or a motion to reconsider a decision of the Board pertaining to a matter initially adjudicated by an officer of DHS shall be filed with the officer of DHS having administrative control over the record of proceeding. (iii) If the motion is made by DHS in proceedings in which DHS has administrative control over the record of proceedings, the record of proceedings in the case and the motion shall be filed directly with the Board. If such motion is filed directly with an office of DHS, the entire record of proceeding shall be forwarded to the Board by the DHS officer promptly upon receipt of the briefs of the parties, or upon expiration of the time allowed for the submission of such briefs. * * * * * (4) Filing parties. DHS and all alien attorneys and accredited representatives are required to electronically file all documents with the Board through EOIR’s electronic filing application in all cases eligible for electronic filing. Although not required, unrepresented respondents, applicants, or petitioners, reputable individuals, and accredited officials may electronically file documents with the Board through EOIR’s electronic filing application in cases eligible for electronic filing. An unrepresented individual, reputable individual, or accredited official who elects to use EOIR’s electronic filing application shall be required to register in conformity with § 1292.1(f) as a condition of using that application. If an unrepresented respondent, applicant, or petitioner or reputable individual or accredited official opts to use EOIR’s electronic filing application for a case, the individual must electronically file all documents with the Board for that case unless the Board, only upon a motion filed by the individual with good cause shown, grants leave to opt out of using the electronic filing application. An unrepresented individual, reputable individual, or accredited official who has been granted leave to opt out of using EOIR’s electronic filing application for a case PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 78253 may not subsequently opt in again to use that application for the same case. (5) Filing requirements. Parties must make the originals of all filed documents available upon request to the Board or the opposing party for review. If EOIR’s electronic filing application is unavailable due to an unplanned system outage on the last day for filing in a specific case, then the filing deadline will be extended to the first day that the electronic filing application becomes accessible that is not a Saturday, Sunday, or legal holiday. For planned system outages, parties must electronically file documents during system availability within the applicable filing deadline or paper file documents within the applicable filing deadline. EOIR will issue public communications for planned system outages ahead of the scheduled outage. Any planned system outage announced three or fewer business days prior to the start of the outage will be treated as an unplanned outage. The Board retains discretion to accept paper filings in all cases. (6) Classified information. Notwithstanding any other provision of this chapter, classified information is never allowed to be electronically filed. (7) Signatures. All documents filed with the Board that require a signature must have an original, handwritten ink signature, an encrypted digital signature, or an electronic signature. Electronic filings submitted through EOIR’s electronic filing application that require the user’s signature may have a conformed signature. This paragraph is subject to the requirements of the application or document being submitted. (8) Service. The service of filings with the Board depends on whether the documents are filed through EOIR’s electronic filing application or in paper. (i) Service of electronic filings. If all parties are using EOIR’s electronic filing application in a specific case, the parties do not need to serve a document that is filed through EOIR’s electronic filing application on the opposing party. EOIR’s electronic filing application will effectuate service by providing a notification of all electronically filed documents on all parties by email. Upon successful upload by one of the parties, EOIR will email a notification to the email addresses provided in paragraph (g)(7)(ii) of this section. If one or more parties are not filing through EOIR’s electronic filing application in a specific case, the parties must follow the service procedures in paragraph (g)(7)(iii) of this section. (ii) Valid Email Address. Use of EOIR’s electronic filing application E:\FR\FM\04DEP1.SGM 04DEP1 78254 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules requires a valid email address for electronic service. The Board will use the email address provided through eRegistry for electronic service on participating parties. Users must immediately update their eRegistry account if their email address changes. Representatives must additionally file a new Form EOIR–27 with the Board if their email address changes. EOIR will consider service completed when the electronic notification is delivered to the last email address on file provided by the user. (iii) Service of paper filings. If electronic filing is not being used in a particular case, the party filing with the Board must serve a copy of the filing on the opposing party and include a certificate of service showing service on the opposing party with their filing. If the moving party is not DHS, service of the motion shall be made upon the ICE Office of the Principal Legal Advisor for the field location in which the case was completed before the immigration judge. * * * * * ■ 6. Amend § 1003.3 revising paragraphs (a)(2), (a)(3), and (c)(2) and adding paragraph (g) to read as follows: § 1003.3 Notice of appeal. (a) * * * (2) Appeal from decision of a DHS officer. A party affected by a decision of a DHS officer that may be appealed to the Board under this chapter shall be given notice of the opportunity to file an appeal. An appeal from a decision of a DHS officer shall be taken by filing a Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer (Form EOIR–29) directly with the DHS office having administrative control over the record of proceeding within 30 days of the service of the decision being appealed. An appeal is not properly filed until it is received at the appropriate DHS office, together with all required documents, and the fee provisions of § 1003.8 are satisfied. (3) General requirements for all appeals. The appeal must be accompanied by a payment in a manner authorized by EOIR or fee waiver request in satisfaction of the fee requirements of § 1003.8. If the respondent or applicant is represented, a Notice of Entry of Appearance as Attorney or Representative Before the Board (Form EOIR–27) must be filed with the Notice of Appeal. The appeal and all attachments must be in English or accompanied by a certified English translation. * * * * * (c) * * * VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 (2) Appeal from decision of a DHS officer. Briefs in support of or in opposition to an appeal from a decision of a DHS officer shall be filed directly with the DHS office having administrative control over the file. The alien and DHS shall be provided 21 days in which to file a brief, unless a shorter period is specified by the DHS officer from whose decision the appeal is taken, and reply briefs shall be permitted only by leave of the Board. Upon written request of the alien, the DHS officer from whose decision the appeal is taken or the Board may extend the period for filing a brief for good cause shown. The Board may authorize the filing of briefs directly with the Board. In its discretion, the Board may consider a brief that has been filed out of time. All briefs and other documents filed in conjunction with an appeal, unless filed by an alien directly with a DHS office, shall include proof of service on the opposing party. * * * * * (g) Filing. This paragraph applies to the filing of documents related to appeals before the Board. (1) Filing parties. DHS and all attorneys and accredited representatives are required to electronically file all documents with the Board through EOIR’s electronic filing application in all cases eligible for electronic filing. Although not required, unrepresented respondents, applicants, or petitioners, reputable individual, and accredited officials may electronically file documents with the Board through EOIR’s electronic filing application in cases eligible for electronic filing. An unrepresented individual, reputable individual, or accredited official who elects to use EOIR’s electronic filing application shall be required to register in conformity with § 1292.1(f) as a condition of using that application. If an unrepresented respondent, applicant, or petitioner, reputable individual, or accredited official opts to use EOIR’s electronic filing application for a case, the individual must electronically file all documents with the Board for that case unless the Board, only upon a motion filed by the individual with good cause shown, grants leave to opt out of using the electronic filing application. An unrepresented individual, reputable individual, or accredited official who has been granted leave to opt out of using EOIR’s electronic filing application for a case may not subsequently opt in to use that application for the same case. (2) Filing requirements. Parties must make the originals of all filed documents available upon request to the PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 Board or to the opposing party for review. If EOIR’s electronic filing application is unavailable due to an unplanned system outage on the last day for filing in a specific case, then the filing deadline will be extended to the first day that the electronic filing application becomes accessible that is not a Saturday, Sunday, or legal holiday. For planned system outages, parties must electronically file documents during system availability within the applicable filing deadline or paper file documents within the applicable filing deadline. EOIR will issue public communications for planned system outages ahead of the scheduled outage. Any planned system outage announced three or fewer business days prior to the start of the outage will be treated as an unplanned outage. The Board retains discretion to accept paper filings in all cases. (3) Classified information. Notwithstanding any other provision of this chapter, classified information is never allowed to be electronically filed. (4) Signatures. All documents filed with the Board that require a signature must have an original, handwritten ink signature, an encrypted digital signature, or an electronic signature. Electronic filings submitted through EOIR’s electronic filing application that require the user’s signature may have a conformed signature. This paragraph is subject to the requirements of the application or document being submitted. (5) Service. The service of filings with the Board depends on whether the documents are filed through EOIR’s electronic filing application or in paper. (i) Service of electronic filings. If all parties are using EOIR’s electronic filing application in a specific case, the parties do not need to serve a document that is filed through EOIR’s electronic filing application on the opposing party. EOIR’s electronic filing application will effectuate service by providing a notification of all electronically filed documents on all parties by email. Upon successful upload by one of the parties, EOIR will email a notification to the email addresses provided in paragraph (g)(5)(ii) of this section. If one or more parties are not filing through EOIR’s electronic filing application in a specific case, the parties must follow the service procedures in paragraph (g)(5)(iii) of this section. (ii) Valid Email Address. Use of EOIR’s electronic filing application requires a valid email address for electronic service. The Board will use the email address provided through eRegistry for electronic service on participating parties. Users must E:\FR\FM\04DEP1.SGM 04DEP1 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules immediately update their eRegistry account if their email address changes. Representatives must additionally file a new Form EOIR–27 with the Board if their email address changes. EOIR will consider service completed when the electronic notification is delivered to the last email address on file provided by the user. (iii) Service of paper filings. If electronic filing is not being used in a particular case, the party filing with the Board must serve a copy of the filing on the opposing party and include a certificate of service showing service on the opposing party with their filing. ■ 7. Amend § 1003.13 by removing the ‘‘Filing’’ and ‘‘Service’’ definitions. ■ 8. Amend § 1003.17 by revising paragraph (a) to read as follows: § 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 DHS as required by § 1003.32. 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 a Form 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 DHS for appearance(s) before DHS. * * * * * ■ 9. Amend § 1003.23 by revising paragraph (b)(1)(ii) to read as follows: § 1003.23 Reopening or reconsideration before the immigration court. * * * * * (b) * * * (1) * * * (ii) Filing. Motions to reopen or reconsider a decision of an immigration judge must be filed with the immigration court having administrative control over the Record of Proceeding. If necessary under § 1003.32, a motion to reopen or a motion to reconsider shall include a certificate showing service on the opposing party of the motion and all attachments. If the moving party is not DHS, service of the motion shall be made upon the ICE Office of the Principal Legal Advisor for the field location in which the case was VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 completed. If the moving party, other than DHS, is represented, a Form EOIR– 28, Notice of Appearance as Attorney or Representative Before an Immigration Judge must be filed with the motion. If filed in paper, the motion must be filed in duplicate with the immigration court, accompanied by a fee receipt. * * * * * ■ 10. Revise § 1003.31 to read as follows: § 1003.31 Filing documents and applications. This section applies to the filing of all documents, including motions and applications, before the immigration courts. (a) Filing parties. DHS and all attorneys and accredited representatives are required to electronically file all documents, including charging documents, with the immigration courts through EOIR’s electronic filing application in all cases eligible for electronic filing. Although not required, unrepresented respondents or applicants, reputable individuals, and accredited officials may electronically file documents with the immigration courts through EOIR’s electronic filing application in cases eligible for electronic filing. An unrepresented individual, reputable individual, or accredited official who elects to use EOIR’s electronic filing application shall be required to register in conformity with § 1292.1(f) as a condition of using that application. If an unrepresented respondent or applicant, reputable individual, or accredited official opts to use EOIR’s electronic filing application for a case, the individual must electronically file all documents with the immigration court for that case unless an immigration judge, only upon a motion filed by the individual with good cause shown, grants leave to opt out of using the electronic filing application. An unrepresented individual, reputable individual, or accredited official who has been granted leave to opt out of using EOIR’s electronic filing application for a case may not subsequently opt in to use that application for the same case. (b) Filing requirements. If EOIR’s electronic filing application is unavailable due to an unplanned system outage on the last day for filing in a specific case, then the filing deadline will be extended to the first day that the electronic filing application becomes accessible that is not a Saturday, Sunday, or legal holiday. For planned system outages, parties must electronically file documents during system availability within the applicable filing deadline or paper file PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 78255 documents within the applicable filing deadline. EOIR will issue public communications for planned system outages ahead of the scheduled outage. Any planned system outage announced three or fewer business days prior to the start of the outage will be treated as an unplanned outage. In all other situations in cases eligible for electronic filing, an immigration judge may accept paper filings from a party otherwise required to file electronically, but only in open court and only: (i) For rebuttal or impeachment purposes, (ii) Upon good cause shown, provided that the filing is otherwise admissible and the immigration judge finds that any applicable filing deadline should be excused, or (iii) When the opposing party does not object to the paper filing. (c) Originals. Parties must make the originals of all filed documents available upon request to the immigration court or the opposing party for review. (d) Classified information. Notwithstanding any other provision of this chapter, classified information is never allowed to be electronically filed. (e) Where to file. All documents that are to be considered in a proceeding before an immigration judge must be filed with the immigration court having administrative control over the Record of Proceeding. (f) Fees. Except as provided in § 1240.11(f), all documents or applications filed with the immigration courts requiring the payment of a fee must be accompanied by a fee receipt from DHS or a fee waiver application pursuant to § 1103.7(c). Except as provided in § 1003.8, any fee relating to immigration judge proceedings shall be paid to, and accepted by, any DHS office authorized to accept fees for other purposes pursuant to § 1103.7(a). (g) Filing deadlines. The immigration judge may set and extend time limits for the filing of applications and related documents and responses thereto, if any. If an application or document is not filed within the time set by the immigration judge, the opportunity to file that application or document shall be deemed waived. (h) Filing under seal. DHS may file documents under seal by including a cover sheet identifying the contents of the submission as containing information which is being filed under seal. Documents filed under seal shall only be examined by persons with authorized access to the administrative record. (i) Signatures. All documents filed with the immigration courts that require E:\FR\FM\04DEP1.SGM 04DEP1 78256 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules a signature must have an original, handwritten ink signature, an encrypted digital signature, or an electronic signature. Electronic filings submitted through EOIR’s electronic filing application that require the user’s signature may have a conformed signature. This paragraph is subject to the requirements of the application or document being submitted. ■ 11. Revise § 1003.32 to read as follows: § 1003.32 Service and size of documents. The service of filings with the immigration courts depends on whether the documents are filed through EOIR’s electronic filing application or in paper. (a) Service of electronic filings. If all parties are using EOIR’s electronic filing application in a specific case, the parties do not need to serve a document that is filed through EOIR’s electronic filing application on the opposing party. If all parties are using EOIR’s electronic filing application in a specific case, EOIR’s electronic filing application will effectuate service by providing a notification of all electronically filed documents on all parties. Upon successful upload by one of the parties, EOIR will email a notification to the email addresses provided in paragraph (b) of this section. If one or more parties are not filing through EOIR’s electronic filing application in a specific case, the parties must follow the service procedures in paragraph (c) of this section. (b) Valid email address. Use of EOIR’s electronic filing application requires a valid email address for electronic service. The immigration courts will use the email address provided through eRegistry for electronic service on participating parties. Users must immediately update their eRegistry account if their email address changes. Representatives must additionally file a new Form EOIR–28 with the immigration court if their email address changes. EOIR will consider service completed when the electronic notification is delivered to the last email address on file provided by the user. (c) Service of paper filings. If electronic filing is not being used in a particular case, the party filing with the immigration court must serve a copy of the filing on the opposing party and include a certificate of service showing service on the opposing party with their filing. The immigration judge will not consider any documents or applications that do not contain a certificate of service unless service is made on the record during a hearing. (d) Size and format of documents. Unless otherwise permitted by the VerDate Sep<11>2014 17:17 Dec 03, 2020 Jkt 253001 immigration judge, all written material presented to immigration judges including offers of evidence, correspondence, briefs, memoranda, or other documents must be submitted on 81⁄2″ x 11″ size pages, whether filed electronically or in paper. The immigration judge may require that exhibits and other written material presented be indexed, paginated, and that a table of contents be provided. ■ 12. Amend § 1003.37 by revising paragraph (a) to read as follows: § 1003.37 Decisions. (a) A decision of the immigration judge may be rendered orally or in writing. If the decision is oral, it shall be stated by the immigration judge in the presence of the parties and a memorandum summarizing the oral decision shall be served on the parties. If the decision is in writing, it shall be served on the parties by personal service, mail, or electronic notification. * * * * * ■ 13. Amend § 1003.38 by revising paragraph (b) to read as follows: § 1003.38 Appeals. * * * * * (b) The Notice of Appeal from a Decision of an Immigration Judge (Form EOIR–26) shall be filed directly with the Board of Immigration Appeals within 30 calendar days after the stating of an immigration judge’s oral decision or the mailing or electronic notification of an immigration judge’s written decision. If the final date for filing falls on a Saturday, Sunday, or legal holiday, this appeal time shall be extended to the next business day. A Notice of Appeal (Form EOIR–26) may not be filed by any party who has waived appeal. * * * * * ■ 14. Amend § 1003.63 by revising the last sentence in paragraphs (f)(1) and (2), to read as follows: § 1003.63 Applications. * * * * * (f) * * * (1) * * * A comment or recommendation not sent to the Director electronically must include proof of service on the applicant. (2) * * * All responses must be filed with the Director and include proof of service of a copy of such response on the commenting party. ■ 15. Amend § 1003.64 by revising the last sentence in paragraph (b) to read as follows: § 1003.64 Approval and denial of applications. * * * * * (b) * * * The written notice shall be served at the address provided on the PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 application unless the applicant subsequently provides a change of address pursuant to § 1003.66, or shall be transmitted to the applicant electronically. * * * * * ■ 16. Amend § 1003.65 by revising the first sentence in paragraph (d)(3) to read as follows: § 1003.65 List. Removal of a provider from the * * * * * (d) * * * (3) Response. The provider may submit a written answer within 30 days from the date the notice is served or is sent to the provider electronically. * * * * * * * * ■ 17. Amend § 1003.106 by revising the second sentence in paragraph (a)(2)(ii) and the seventh sentence in paragraph (b) to read as follows: § 1003.106 Right to be heard and disposition. (a) * * * (2) * * * (ii) * * * When designating the time and place of a hearing, the adjudicating official shall provide for the service of a notice of hearing on the practitioner or the authorized officer of the recognized organization and the counsel for the government. * * * * * (b) * * * The adjudicating official shall provide for service of a written decision or memorandum summarizing an oral decision on the practitioner or, in cases involving a recognized organization, on the authorized officer of the organization and on the counsel for the government. * * * * * * * * PART 1208—PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL 18. The authority citation for part 1208 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of Pub. L. 110–229; Pub. L. 115–218. 19. Amend § 1208.4 by revising the fifth sentence of paragraph (a)(2)(ii) to read as follows: ■ § 1208.4 Filing the application. * * * * * (a) * * * (2) * * * (ii) * * * For cases before the immigration court, the application is considered to have been filed on the date it is received by the immigration court. * * * * * * * * E:\FR\FM\04DEP1.SGM 04DEP1 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules § 1240.13 PART 1214—REVIEW OF NONIMMIGRANT CLASSES 20. The authority citation for part 1214 continues to read as follows: ■ Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301–1305 and 1372; sec. 643, Pub. L. 104– 208, 110 Stat. 3009–708; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and 1931 note, respectively; 8 CFR part 2. § 1214.2 [Amended] 21. Amend § 1214.2 (a) by: a. Removing the words ‘‘the Service’’ and adding, in their place, the word ‘‘DHS’’; ■ b. Removing the words ‘‘Service counsel’’ and adding, in their place, the words ‘‘DHS counsel’’; and ■ c. Removing the words ‘‘Service custody’’ and adding, in their place, the words ‘‘DHS custody’’. ■ ■ 22. The authority citation for part 1240 continues to read as follows: Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226, 1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202 and 203, Pub. L. 105–100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105–277 (112 Stat. 2681). [Amended] 23. Amend § 1240.2 by: a. Removing the words ‘‘the Service’’ and adding, in their place, the word ‘‘DHS’’; ■ b. Removing the words ‘‘Service counsel’’ and adding, in their place, the words ‘‘DHS counsel’’; and ■ c. Removing the words ‘‘Service attorney’’ and adding, in their place, the words ‘‘DHS counsel’’. ■ ■ [Amended] [Amended] 25. Amend § 1240.11 by: a. Removing the words ‘‘the Service’’ and adding, in their place, the word ‘‘DHS’’; and ■ b. Removing the words ‘‘Service counsel’’ and adding, in their place, the words ‘‘DHS counsel’’. ■ ■ VerDate Sep<11>2014 17:17 Dec 03, 2020 § 1240.32 Jkt 253001 [Amended] § 1240.33 [Amended] 29. Amend § 1240.33 by removing the words ‘‘Service counsel’’ and adding, in their place, the words ‘‘DHS counsel’’. ■ [Amended] 30. Amend § 1240.48 by: a. Removing the words ‘‘the Service’’ and adding, in their place, the word ‘‘DHS’’; and ■ b. Removing the words ‘‘Service counsel’’ and adding, in their place, the words ‘‘DHS counsel’’. § 1240.49 [Amended] 31. Amend § 1240.49 by: a. Removing the words ‘‘the Service’’ and adding, in their place, the word ‘‘DHS’’; and ■ b. Removing the words ‘‘Service counsel’’ and adding, in their place, the words ‘‘DHS counsel’’. ■ ■ § 1240.51 [Amended] 32. Amend § 1240.51 by removing the words ‘‘Service counsel’’ and adding, in their place, the words ‘‘DHS counsel’’. ■ 33. Amend § 1240.53 by revising paragraph (a) to read as follows: ■ Appeals. (a) Pursuant to 8 CFR part 1003, an appeal shall lie from a decision of an immigration judge to the Board, except that no appeal shall lie from an order of deportation entered in absentia. The procedures regarding the filing of a Form EOIR–26, Notice of Appeal, fees, and briefs are set forth in §§ 1003.3, 1003.31, and 1003.38 of this chapter. An appeal shall be filed within 30 calendar days after the mailing or electronic notification of a written decision, the stating of an oral decision, or the service of a summary decision. The filing date is defined as the date of receipt of the Notice of Appeal by the Board. The PO 00000 Frm 00018 Fmt 4702 reasons for the appeal shall be stated in the Form EOIR–26, Notice of Appeal, in accordance with the provisions of § 1003.3(b) of this chapter. Failure to do so may constitute a ground for dismissal of the appeal by the Board pursuant to § 1003.1(d)(2) of this chapter. * * * * * PART 1245—ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE 34. The authority citation for part 1245 continues to read as follows: ■ 28. Amend § 1240.32 by: a. Removing the words ‘‘the Service’’ and adding, in their place, the word ‘‘DHS’’; and ■ b. Removing the words ‘‘Service counsel’’ and adding, in their place, the words ‘‘DHS counsel’’. ■ ■ § 1240.53 24. Amend § 1240.10 by: a. Removing the words ‘‘the Service’’ and adding, in their place, the word ‘‘DHS’’; and ■ b. Removing the words ‘‘an Service counsel’’ and adding, in their place, the words ‘‘DHS counsel’’. ■ ■ § 1240.11 [Amended] 27. Amend § 1240.26 by: a. Removing the words ‘‘the Service’’ and adding, in their place, the word ‘‘DHS’’; and ■ b. Removing the words ‘‘Service counsel’’ and adding, in their place, the words ‘‘DHS counsel’’. ■ ■ ■ ■ ■ § 1240.10 § 1240.26 § 1240.48 PART 1240—PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES § 1240.2 [Amended] 26. Amend § 1240.13 by removing the words ‘‘Service counsel’’ and adding, in their place, the words ‘‘DHS counsel’’. ■ 78257 Sfmt 4702 Authority: 8 U.S.C. 1101, 1103, 1182, 1255; section 202, Pub. L. 105–100, 111 Stat. 2160, 2193; section 902, Pub. L. 105–277, 112 Stat. 2681; Title VII of Pub. L. 110–229. 35. Amend § 1245.21 by: a. Removing the words ‘‘the Service’’ and adding, in their place, the word ‘‘DHS’’; ■ b. Removing the words ‘‘the Service’s’’ and adding, in their place, the word ‘‘DHS’s’’; and ■ c. Removing the words ‘‘Service counsel’’ and adding, in their place, the words ‘‘DHS counsel’’. ■ ■ PART 1246—RECISSION OF ADJUSTMENT OF STATUS 36. The authority citation for part 1246 continues to read as follows: ■ Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259; 8 CFR part 2. § 1246.5 [Amended] 37. Amend § 1246.5 by removing the words ‘‘Service counsel’’ and adding, in their place, the words ‘‘DHS counsel’’. ■ PART 1292—REPRESENTATION AND APPEARANCES 38. The authority citation for part 1292 continues to read as follows: ■ Authority: 8 U.S.C. 1103, 1362. 39. Amend § 1292.1 by revising paragraphs (a)(2)(ii) through (iv), and adding paragraph (a)(2)(v) to read as follows: ■ § 1292.1 Representation of others. (a) * * * (2) * * * (ii) In the case of a law student, he or she has filed a statement that he or she is participating, under the direct supervision of an EOIR-registered licensed attorney or accredited representative, in a legal aid program or clinic conducted by a law school or non-profit organization, and that he or she is appearing without direct or indirect remuneration from the alien he or she represents; E:\FR\FM\04DEP1.SGM 04DEP1 78258 Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / Proposed Rules (iii) In the case of a law graduate, he or she has filed a statement that he or she is appearing under the supervision of a licensed attorney or accredited representative and that he or she is appearing without direct or indirect remuneration from the alien he or she represents; (iv) An attorney or accredited representative physically accompanies the law student or law graduate who is appearing. The accompanying attorney or accredited representative must be authorized to practice before EOIR and be prepared to proceed with the case at all times; and (v) All filings by law students and law graduates are made through an EOIRregistered attorney or accredited representative. * * * * * James R. McHenry, Director, Executive Office for Immigration Review, Department of Justice. [FR Doc. 2020–26115 Filed 12–3–20; 8:45 am] BILLING CODE 4410–30–P DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Parts 24, 25, 35, and 192 [Docket ID OCC–2020–0025] RIN 1557–AE96 Community Reinvestment Act Regulations Office of the Comptroller of the Currency, Treasury. ACTION: Notice of proposed rulemaking. AGENCY: The Office of the Comptroller of the Currency (OCC) is issuing a notice of proposed rulemaking to request comment on the OCC’s proposed approach to determine the Community Reinvestment Act (CRA) evaluation measure benchmarks, retail lending distribution test thresholds, and community development minimums under the general performance standards. The proposal further explains how the OCC would assess significant declines in CRA activities levels in connection with performance context following the initial establishment of the benchmarks, thresholds, and minimums. Finally, the proposed rule would make clarifying and technical amendments to the CRA final rule. DATES: Comments must be received on or before February 2, 2021. ADDRESSES: Commenters are encouraged to submit comments through the Federal SUMMARY: VerDate Sep<11>2014 18:21 Dec 03, 2020 Jkt 253001 eRulemaking Portal, if possible. Please use the title ‘‘Community Reinvestment Act Regulations’’ to facilitate the organization and distribution of the comments. You may submit comments by any of the following methods: • Federal eRulemaking Portal— Regulations.gov Classic or Regulations.gov Beta Regulations.gov Classic: Go to https:// www.regulations.gov/. Enter ‘‘Docket ID OCC 2020–0025’’ in the Search Box and click ‘‘Search.’’ Click on ‘‘Comment Now’’ to submit public comments. For help with submitting effective comments please click on ‘‘View Commenter’s Checklist.’’ Click on the ‘‘Help’’ tab on the Regulations.gov home page to get information on using Regulations.gov, including instructions for submitting public comments. Regulations.gov Beta: Go to https:// beta.regulations.gov/ or click ‘‘Visit New Regulations.gov Site’’ from the Regulations.gov classic homepage. Enter ‘‘Docket ID OCC–2020–0025’’ in the Search Box and click ‘‘Search.’’ Public comments can be submitted via the ‘‘Comment’’ box below the displayed document information or click on the document title and click the ‘‘Comment’’ box on the top-left side of the screen. For help with submitting effective comments please click on ‘‘Commenter’s Checklist.’’ For assistance with the Regulations.gov Beta site please call (877)-378–5457 (toll free) or (703) 454–9859 Monday-Friday, 9am5pm ET or email to regulations@ erulemakinghelpdesk.com. • Mail: Chief Counsel’s Office, Attention: Comment Processing, Office of the Comptroller of the Currency, 400 7th Street SW, Suite 3E–218, Washington, DC 20219. • Hand Delivery/Courier: 400 7th Street SW, Suite 3E–218, Washington, DC 20219. Instructions: You must include ‘‘OCC’’ as the agency name and ‘‘Docket ID OCC–2020–0025’’ in your comment. In general, the OCC will enter all comments received into the docket and publish the comments on the Regulations.gov website without change, including any business or personal information provided such as name and address information, email addresses, or phone numbers. Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. You may review comments and other related materials that pertain to this PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 rulemaking action by the following method: • Viewing Comments Electronically— Regulations.gov Classic or Regulations.gov Beta: Regulations.gov Classic: Go to https:// www.regulations.gov/. Enter ‘‘Docket ID OCC–2020–0025’’ in the Search box and click ‘‘Search.’’ Click on ‘‘Open Docket Folder’’ on the right side of the screen. Comments and supporting materials can be viewed and filtered by clicking on ‘‘View all documents and comments in this docket’’ and then using the filtering tools on the left side of the screen. Click on the ‘‘Help’’ tab on the Regulations.gov home page to get information on using Regulations.gov. The docket may be viewed after the close of the comment period in the same manner as during the comment period. Regulations.gov Beta: Go to https:// beta.regulations.gov/ or click ‘‘Visit New Regulations.gov Site’’ from the Regulations.gov classic homepage. Enter ‘‘Docket ID OCC–2020–0025’’ in the Search Box and click ‘‘Search.’’ Click on the ‘‘Comments’’ tab. Comments can be viewed and filtered by clicking on the ‘‘Sort By’’ drop-down on the right side of the screen or the ‘‘Refine Results’’ options on the left side of the screen. Supporting Materials can be viewed by clicking on the ‘‘Documents’’ tab and filtered by clicking on the ‘‘Sort By’’ drop-down on the right side of the screen or the ‘‘Refine Results’’ options on the left side of the screen.’’ For assistance with the Regulations.gov Beta site please call (877)-378–5457 (toll free) or (703) 454–9859 Monday-Friday, 9am5pm ET or email to regulations@ erulemakinghelpdesk.com. The docket may be viewed after the close of the comment period in the same manner as during the comment period. FOR FURTHER INFORMATION CONTACT: Ioan Voicu, Director, Compliance Risk Analysis Division, at (202) 649–5550; or Daniel Borman, Senior Attorney, Daniel Sufranski, Attorney, or Jean Xiao, Attorney, Chief Counsel’s Office, (202) 649–5490, Office of the Comptroller of the Currency, 400 7th Street SW, Washington, DC 20219. SUPPLEMENTARY INFORMATION: I. Introduction On June 5, 2020, the OCC published a final rule in the Federal Register (2020 final rule) to update the regulatory framework implementing the Community Reinvestment Act of 1977 (CRA) 1 for national banks and savings 1 Community Reinvestment Act of 1977, Public Law 95–128, 91 Stat. 1147 (1977), codified at 12 U.S.C. 2901 et seq. E:\FR\FM\04DEP1.SGM 04DEP1

Agencies

[Federal Register Volume 85, Number 234 (Friday, December 4, 2020)]
[Proposed Rules]
[Pages 78240-78258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26115]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 85, No. 234 / Friday, December 4, 2020 / 
Proposed Rules

[[Page 78240]]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Parts 1001, 1003, 1208, 1214, 1240, 1245, 1246, 1292

[EOIR Docket No. 18-0203; Dir. Order No. 04-2021]
RIN 1125-AA81


Executive Office for Immigration Review Electronic Case Access 
and Filing

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Executive Office for Immigration Review (``EOIR'') is 
proposing to implement electronic filing and records applications for 
all cases before the immigration courts and the Board of Immigration 
Appeals (``BIA''). The proposed rule would update the relevant 
regulations necessary to implement these electronic filing and records 
applications, including requiring certain users to file documents 
electronically and changes to service of process. EOIR further proposes 
clarifications to the regulations regarding law student filing and 
accompaniment procedures.

DATES: Electronic comments must be submitted and written comments must 
be postmarked or otherwise indicate a shipping date on or before 
January 4, 2021. The electronic Federal Docket Management System at 
https://www.regulations.gov will accept electronic comments until 11:59 
p.m. Eastern Time on that date.

ADDRESSES: If you wish to provide comment regarding this rulemaking, 
you must submit comments, identified by the agency name and reference 
RIN 1125-AA81 or EOIR Docket No. 18-0203, by one of the two methods 
below.
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the website instructions for submitting comments.
     Mail: Paper comments that duplicate an electronic 
submission are unnecessary. If you wish to submit a paper comment in 
lieu of electronic submission, please direct the mail/shipment to: 
Lauren Alder Reid, Assistant Director, Office of Policy, Executive 
Office for Immigration Review, 5107 Leesburg Pike, Suite 1800, Falls 
Church, VA 22041. To ensure proper handling, please reference the 
agency name and RIN 1125-AA81 or EOIR Docket No. 18-0203 on your 
correspondence. Mailed items must be postmarked or otherwise indicate a 
shipping date on or before the submission deadline.

FOR FURTHER INFORMATION CONTACT: Lauren Alder Reid, Assistant Director, 
Office of Policy, Executive Office for Immigration Review, 5107 
Leesburg Pike, Suite 1800, Falls Church, VA 22041, telephone (703) 305-
0289 (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments on all aspects of this 
proposed rule via the one of the methods and by the deadline stated 
above. All comments must be submitted in English, or accompanied by an 
English translation. The Department of Justice (the ``Department'') 
also invites comments that relate to the economic, environmental, or 
federalism effects that might result from this proposed rule. Comments 
that will provide the most assistance to the Department in developing 
these procedures will reference a specific portion of the proposed 
rule; explain the reason for any recommended change; and include data, 
information, or authority that support such recommended change.
    Please note that all comments received are considered part of the 
public record and made available for public inspection at https://www.regulations.gov. Such information includes personally identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personally 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 ``PERSONALLY 
IDENTIFYING INFORMATION'' 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 also must 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 
https://www.regulations.gov.
    Personally identifying information 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. The Department may 
withhold from public viewing information provided in comments that they 
determine may impact the privacy of an individual or is offensive. For 
additional information, please read the Privacy Act notice that is 
available via the link in the footer of https://www.regulations.gov. To 
inspect the agency's public docket file in person, you must make an 
appointment with the agency. Please see the For Further Information 
Contact paragraph above for agency contact information.
    The Department may withhold from public viewing information 
provided in comments that they determine may impact the privacy of an 
individual or is offensive. For additional information, please read the 
Privacy Act notice that is available via the link in the footer of 
https://www.regulations.gov.

II. Background

A. Introduction

    Since July 2018, EOIR has been piloting a voluntary program to test 
electronic filing and records applications for certain cases filed with 
the immigration courts and the BIA. See EOIR Electronic Filing Pilot 
Program, 83 FR 29575 (June 25, 2018). Following this successful pilot 
at five immigration courts, EOIR is now proposing to permanently 
implement these electronic

[[Page 78241]]

filing and records applications at the immigration courts and the BIA. 
This proposed rule would amend the regulatory sections necessary to 
implement the electronic filing and records applications.

B. History

    In 1998, Congress passed the Government Paperwork Elimination Act 
(``GPEA''), which requires federal agencies to provide the public with 
the ability to conduct business electronically, when practicable, with 
the federal government. See Public Law 105-277, Sec.  1701-10, Oct. 21, 
1998, 112 Stat. 2681, 2681-749 to -751. Similarly, in 2002, Congress 
passed the E-Government Act of 2002, which promotes electronic 
government services and requires agencies to use internet-based 
technology to increase the public's access to government information 
and services. See Public Law 107-347, Dec. 17, 2002, 116 Stat. 2899.
    As a result, EOIR began pursuing a long-term agency plan to create 
electronic case access and filing applications for the immigration 
courts and BIA. See Executive Office for Immigration Review Attorney/
Representative Registry, 68 FR 75160, 75161 (Dec. 30, 2003) (``The 
Department is . . . designing an electronic case access and filing 
system, to comply with the [GPEA], to achieve the Department's vision 
for improved immigration adjudication processing, and to meet the 
public expectations for electronic government.''). Under the GPEA, 
where practicable, executive branch agencies are to provide for 
electronic submissions in lieu of paper submissions and for the use of 
electronic signatures. 44 U.S.C. 3504(a)(1)(B)(vi).
    On April 1, 2013, EOIR completed the first portion of its public-
facing electronic applications by establishing eRegistry, a mandatory 
electronic registry for all attorneys and fully accredited 
representatives who practice before the immigration courts and the 
BIA.\1\ See Registry for Attorneys and Representatives, 78 FR 19400 
(Apr. 1, 2013). At the same time, EOIR began allowing attorneys and 
accredited representatives \2\ to electronically file the Notice of 
Entry of Appearance as Attorney or Representative (Form EOIR-27 and 
Form EOIR-28, for the BIA and immigration courts, respectively).
---------------------------------------------------------------------------

    \1\ The EOIR regulations differentiate between ``partially 
accredited representatives'' who are only authorized to represent 
persons in matters pending before the Department of Homeland 
Security (``DHS''), and ``fully accredited representatives'' who are 
authorized to represent persons in matters pending before EOIR as 
well as matters pending before DHS. See 8 CFR 1292.1(a)(4). Inasmuch 
as this rule pertains only to practice before EOIR, the only 
accredited representatives who would be affected by this rule are 
fully accredited representatives. Accordingly, the references in 
this rule to ``accredited representatives'' refer only to fully 
accredited representatives in the context of their practice before 
EOIR.
    \2\ EOIR's Office of Policy reviews recognized organizations' 
applications for non-attorneys to become fully accredited 
representatives who, upon approval, can represent aliens in 
immigration court proceedings and before DHS. For more information, 
please see EOIR, Recognition & Accreditation (R&A) Program (June 8, 
2020), https://www.justice.gov/eoir/recognition-and-accreditation-program.
---------------------------------------------------------------------------

    On May 4, 2015, EOIR launched ``eInfo,'' a web-based application 
that allows registered attorneys and accredited representatives to view 
their clients' case information. See EOIR, The Executive Office for 
Immigration Review Announces I \3\ (May 4, 2015), https://www.justice.gov/eoir/pr/executive-office-immigration-review-announces-i. Attorneys and accredited representatives can log into the eInfo 
application to view a list of cases for which they have an active 
Notice of Entry of Appearance (Form EOIR-27 or Form EOIR-28) and view 
case-related information.
    Since June 2017, EOIR has been undertaking additional and more 
expansive initiatives to reduce its longstanding backlog of cases and 
working to ensure the more efficient handling of matters before the 
immigration court system. As part of that plan, in July 2018, EOIR 
launched a pilot program to allow attorneys and accredited 
representatives to electronically file case-related documents with the 
immigration courts and the BIA, and for EOIR to process cases using an 
electronic record of proceeding (``eROP''). See 83 FR at 29575. The 
pilot launched in five immigration courts between July and December 
2018: San Diego, California in July; Atlanta, Georgia and Denver, 
Colorado in August; Baltimore, Maryland in September; and York, 
Pennsylvania in December.\3\ The BIA has participated in the pilot for 
operational planning purposes but is not yet accepting electronic 
filings. As of September 2020, more than 15,000 private attorneys had 
volunteered to participate, representatives and immigration court staff 
had electronically uploaded more than 500,000 documents, and court 
staff had created more than 80,000 eROPs.
---------------------------------------------------------------------------

    \3\ Charlotte was originally scheduled as a pilot location in 
September 2018, but the pilot there was cancelled due to Hurricane 
Florence. Similarly, York was moved from July 2018 to December 2018 
to accommodate additional internal development to ensure ECAS 
functionality for detained courts.
---------------------------------------------------------------------------

    EOIR is continuing to expand the rollout of this system, which will 
eventually expand to all immigration courts and the BIA. The EOIR 
Courts and Appeals System (``ECAS'') is now available in several 
immigration courts and adjudication centers. Information regarding the 
full implementation schedule will be posted on EOIR's website. EOIR, 
EOIR Courts & Appeals System (ECAS)--Online Filing, (Oct. 5, 2020) 
https://www.justice.gov/eoir/ECAS.

III. Proposed Rule

    This proposed rule would provide for EOIR's implementation of the 
electronic filing and records applications that are currently in use in 
several immigration courts and the BIA.
    Following the launch of the electronic filing and records 
applications in each immigration court, all cases in which the 
Department of Homeland Security (``DHS'') files a charging document in 
that court after the launch date are processed electronically, meaning 
that EOIR will maintain an eROP as the official record of proceeding 
for that case. Regardless of whether all parties are participating in 
the electronic filing and records applications, EOIR will maintain an 
eROP for such cases. If a document is filed on paper, EOIR will scan 
the document into the eROP and maintain the eROP as the official record 
of proceeding. In addition, attorneys and accredited representatives 
may submit bond redetermination requests electronically with that 
court, which EOIR will then process electronically. For more 
information about the privacy risks associated with the eROP, and the 
measures EOIR has taken to protect this information, please see EOIR, 
Privacy Impact Assessment for the eWorld Adjudication System, 19-24 
(Dec. 13, 2018), https://www.justice.gov/opcl/page/file/1120991/download.
    Appeals of immigration judge decisions filed with the BIA will 
similarly be processed electronically following the launch of the 
electronic filing and records applications system at the BIA. Appeals 
of immigration judge decisions, appeals from DHS officer decisions,\4\ 
and motions to reopen or reconsider filed with the BIA will follow 
existing legal process, but will be filed and processed electronically. 
All cases initiated at an immigration court or the BIA before the 
launch of the electronic filing and records

[[Page 78242]]

applications in that location will continue to be processed in paper by 
EOIR, and will continue to require the parties to paper file documents 
in those cases. Similarly, if a case begins in an immigration court 
with an eROP, and then changes venue to an immigration court that has 
not yet implemented the electronic filing and records applications, 
that case will be converted to a paper record and processed in paper at 
the new court. In the future, EOIR may explore converting existing 
paper records into eROPs following the launch of the electronic filing 
and records applications at the immigration court with administrative 
control over the paper record of proceeding (``ROP''); such conversion 
would also depend on the cost and technological feasibility.
---------------------------------------------------------------------------

    \4\ For appeals of DHS officer decisions that are subject to 
review by the BIA, the process for DHS would not change under this 
rule as DHS currently submits all of those materials to the BIA for 
adjudication, and it will continue to do so. See 8 CFR 1003.5(b).
---------------------------------------------------------------------------

    Once this proposed rule is adopted in final form, electronic filing 
will become mandatory for all attorneys and accredited representatives, 
with limited exceptions as discussed further below. This includes 
mandatory electronic filing of charging documents initiated by DHS, 8 
CFR 1003.13 (defining charging documents), and mandatory electronic 
filing of other documents.\5\ However, until this proposed rule is 
adopted in final form, participation in the pilot program at any court 
where EOIR has launched the electronic filing capabilities or the BIA 
will remain voluntary under the terms of the existing pilot program. 
Similarly, immigration courts and the BIA will continue to follow 
existing procedures for sending and receiving case-related materials in 
those cases where the attorney or accredited representative has not 
agreed to participate in the pilot program. In order to complete this 
full nationwide implementation, EOIR is proposing to make the following 
changes to its regulations.
---------------------------------------------------------------------------

    \5\ Non-documentary filings (e.g., proposed audio or video 
exhibits) are not contemplated under existing regulations. See, 
e.g., 8 CFR 1003.31, 1003.32, 1003.33 (all referring to 
``documents''). Nevertheless, consistent with an immigration judge's 
authority to make determinations regarding removability and 
applications, 8 CFR 1240.1(a)(1)(i)-(ii), and an immigration judge's 
authority to take action consistent with the law to decide cases 
before them, 8 CFR 1003.10(b), such filings may be considered 
subject to an immigration judge's discretion. The proposed rule does 
not alter that practice. Consequently, because security protocols 
may prevent the direct uploading of audio or video files into ECAS 
as filings, parties wishing to submit non-documentary filings in 
cases with an eROP should continue to file them in a physical format 
(e.g., a CD or DVD) directly with the relevant immigration court. 
Such non-documentary filings, subject to the immigration judge's 
discretion, may then be incorporated into the eROP as appropriate.
---------------------------------------------------------------------------

A. Filing

1. Who May File Electronically
    This rulemaking proposes that electronic filing will become 
mandatory for DHS \6\ and attorneys and accredited representatives who 
represent respondents, applicants, or petitioners before EOIR. By 
mandating electronic filing for attorneys and accredited 
representatives, EOIR will be able to maintain a complete electronic 
process for many cases from beginning to end. EOIR anticipates that 
this will create significant efficiencies for the parties and EOIR. For 
example, registered parties will be able to file documents 
electronically at any time of day from any location with internet 
access, removing concerns related to the restrictions business hours 
create to meet filing deadlines (i.e., representatives can file after 
court hours rather than appearing in person at the court or a mail 
delivery service office during certain hours). Once the electronic 
filings are accepted, the parties will be able to view all of the 
documents filed in their case without having to appear at an 
immigration court to view the paper record. Parties will be required to 
make all original paper copies of any electronically filed documents 
available for review upon request of the immigration court, BIA, or the 
opposing party. Similarly, EOIR will be able to quickly process filings 
and maintain case records through an electronic system.
---------------------------------------------------------------------------

    \6\ DHS includes all relevant DHS components. See 8 CFR 
1001.1(w). DHS will determine which of its employees are responsible 
for filing documents in ECAS in individual cases.
---------------------------------------------------------------------------

    To provide for possible unanticipated issues arising from mandating 
electronic filing, this rule proposes to allow for an extended filing 
deadline when the electronic filing system is unavailable due to an 
unplanned system outage and to provide immigration judges with the 
authority to accept paper filings in open court in limited 
circumstances, including for rebuttal or impeachment purposes; for good 
cause shown, provided that the filing is otherwise admissible and the 
immigration judge finds that any applicable filing deadline should be 
excused; or, when the opposing party does not object to the paper 
filing.
    EOIR also intends to make electronic filing through ECAS available 
on a voluntary basis to pro se respondents, applicants, or petitioners 
and to reputable individuals and accredited officials, as defined in 8 
CFR 1292.1(a)(3) and (a)(5), respectively, because all of the same 
efficiencies listed above may also flow to those individuals if they 
choose to use ECAS. Both reputable individuals and accredited officials 
may act as representatives in immigration proceedings before EOIR and 
are subject to the same requirements as other representatives, such as 
the need to file a Form EOIR-28 when making an appearance or receiving 
service of process in a particular case. See, e.g., 8 CFR 1292.4(a), 
1292.5(a). EOIR also recognizes that both types of representatives 
appear sparingly in proceedings before EOIR, and both reputable 
individuals and accredited officials, as defined in the regulations, 
may not have the same sort of familiarity with EOIR's procedures and 
requirements as other types of representatives. Cf. 8 CFR 
1292.1(a)(3)(iv) (providing that, in order to qualify as a reputable 
individual, a person may not be one who ``regularly engages in 
immigration and naturalization practice or preparation''). Although pro 
se respondents, applicants, or petitioners and reputable individuals 
and accredited officials are not currently able to participate in the 
electronic filing program, this capability will eventually be available 
for those who opt to use it, and EOIR will adapt its current 
registration system as appropriate to allow pro se respondents, 
applicants, or petitioners and reputable individuals and accredited 
officials to register in order to be able to utilize ECAS. The 
rulemaking proposes changes to allow for this future ECAS utilization 
capability by pro se respondents, applicants, or petitioners and 
reputable individuals and accredited officials.\7\
---------------------------------------------------------------------------

    \7\ Although opting in for electronic filing through ECAS is 
voluntary for pro se respondents, applicants, or petitioners and for 
reputable individuals and accredited officials, such individuals who 
choose to opt in will do so for the life of the case and may not opt 
out without leave from an immigration judge or, for cases pending 
with the BIA, from the BIA. This qualification sets clear 
expectations for the individual and reduces the likelihood of 
confusion among the individual, the opposing party, and the 
immigration court staff regarding documents filed multiple times 
through different methods, of the possible loss of documents filed 
in a manner inconsistent with how the official record of proceeding 
is being kept, and of the improper effectuation of service on the 
opposing party.
---------------------------------------------------------------------------

    EOIR seeks comment on these considerations, including how to best 
register such users for electronic filing, whether the same two-factor 
authentication process used for attorneys and accredited 
representatives would similarly work for these users, whether there are 
other more effective methods for identity-proofing online filers who do 
not have the same

[[Page 78243]]

financial or U.S. ``footprint'' that can be used for remote 
verification of the person's identity, and how to combat any potential 
fraud concerns related to expanding electronic filing capabilities to 
parties other than attorneys and accredited representatives. For more 
information on the current registration process for eRegistry, please 
see EOIR, Frequently Asked Questions: Attorneys and Accredited 
Representatives (Oct. 1, 2020), https://www.justice.gov/eoir/ecas/attorney-and-ar-FAQs.
    EOIR also proposes to change how law students and law graduates, as 
defined in 8 CFR 1292.1(a)(2), file documents and appear before EOIR. 
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 240(b)(4)(A), 8 U.S.C. 1229a(b)(4)(A); see also INA 292, 8 U.S.C. 
1362. The Attorney General possesses a general authority to ``establish 
such regulations . . . as the Attorney General determines to be 
necessary for carrying out'' his authorities under the INA. INA 
103(g)(2), 8 U.S.C. 1103(g)(2). Pursuant to this authority, this rule 
proposes to clarify the circumstances under which law students and law 
graduates are authorized to practice in immigration proceedings.
    There is no statutory entitlement for law students and law 
graduates to participate as representatives in immigration proceedings. 
Rather, the Department has authorized law student representation 
subject to attorney supervision as a matter of regulatory grace since 
at least 1975. Representation and Appearance Before Immigration and 
Naturalization Service and Board of Immigration Appeals, 40 FR 23271 
(May 29, 1975). Over time, the Department had modified the regulations 
governing law student and law graduate practice on multiple occasions. 
See, e.g., Representation and Appearance, 55 FR 49250 (Nov. 27, 1990) 
(expanding participation of law students in clinical programs at 
accredited law schools from only third-year law students to first and 
second-year students); Executive Office for Immigration Review; 
Representation and Appearances: Law Students and Law Graduates, 62 FR 
23634 (May 1, 1997) (clarifying that law students and law graduates 
could participate through programs outside of law school clinics and 
that the prohibition on direct or indirect remuneration for law 
students and law graduates applies only to remuneration from 
respondents). The most recent change occurred in 2008, when the 
Department clarified ``that law students and law graduates must be 
students and graduates of accredited law schools in the United States'' 
in order to practice before EOIR. Professional Conduct for 
Practitioners--Rules and Procedures, and Representation and 
Appearances, 73 FR 76914, 76916 (Dec. 18, 2008).
    As the Department moves toward electronic filing capability for all 
cases in immigration proceedings, it finds that additional 
clarifications are warranted to ensure that appropriate attorney 
supervision over law students and law graduates is maintained and that 
respondents are not prejudiced by the intrinsically transient nature of 
such representation. Cf. 78 FR at 19400, 19404 (declining to require 
law students to register with EOIR due to, among other things, ``the 
transient nature of law students' participation in clinical programs 
and the limited circumstances under which students can represent 
individuals before EOIR . . . the absence of any mechanism to inform 
EOIR when a student leaves a program . . . [and the lack of a] 
regulatory provision permitting a law student to appear before EOIR if 
not enrolled in a `legal aid program or clinic,' [making] it . . . 
problematic for those students to remain registered after leaving a 
clinical program'').
    The proposed rule clarifies that all filings by law students must 
be made through an attorney or accredited representative who is 
registered with EOIR pursuant to 8 CFR 1292.1(f). As currently drafted, 
the regulations require ``direct supervision'' of law students, 8 CFR 
1292.1(a)(2)(ii), but do not provide a clear definition of that term. 
Further, this rulemaking proposes that law graduates, currently 
required to have ``supervision'' under the regulations, 8 CFR 
1292.1(a)(2)(iii), would also need to file through an attorney or 
accredited representative registered with EOIR. Law students and law 
graduates often provide representation through clinics or other short-
term programs, which limits the length of their representation and can 
create confusion that affects the respondent when such short-term 
representation results in a change of counsel. With electronic filing, 
it is critical that the court can reach the supervising attorney and 
that the attorney is familiar with the proceedings, similar to the 
requirement that the clinic's address be provided for court 
communications rather than a student's personal address.
    By requiring filings be completed through a supervising attorney or 
accredited representative, EOIR will be able to ensure that there is a 
single representative responsible for receiving electronic service from 
EOIR for the duration of the proceeding. For example, EOIR wants to 
prevent a scenario where electronic service of an important, time-
sensitive document is sent to a law student who, since the last 
hearing, has left a law school clinic and is not expecting any EOIR-
related emails. In practice, this will also increase the use of 
electronic filing because, under this proposed rule, the supervising 
attorney or accredited representative will be required to file 
documents electronically with EOIR. To protect the integrity of the 
filings, and proceedings as a whole, only registered attorneys and 
fully accredited representatives will be able to file electronically. 
The supervising attorney or accredited representative must be the filer 
to ensure that an attorney or representative authorized to practice 
before EOIR performs their supervisory role and takes ultimate 
responsibility for official filings. This change is also consistent 
with existing requirements in many states regarding law student 
practice. See, e.g., Ga. Sup. Ct. R. 95(4) (``An attorney who 
supervises a registered law student shall . . . review, approve and 
personally sign any document prepared by a student that is filed in any 
court or tribunal, and review and approve any document prepared by a 
student that would have binding legal effect on a person or entity 
receiving services in relation to activities of the student registered 
pursuant to this Rule''); Wash. Ad. and Prac. R. 9(f)(4) (a supervising 
lawyer of a licensed legal intern ``must review and sign all 
correspondence providing legal advice to clients and all pleadings, 
motions, briefs, and other documents prepared by the Licensed Legal 
Intern and ensure that they comply with the requirements of this 
proposed rule, and must sign the document if it is prepared for 
presentation to a court'').
    In addition, this rulemaking proposes that a law student or law 
graduate is authorized to practice only if a supervising attorney or 
accredited representative physically accompanies the law student or law 
graduate during all immigration court appearances.\8\ The supervising 
attorney or accredited representative must enter an appearance in the 
case and be physically present

[[Page 78244]]

and prepared to proceed in case of the inability of the law student or 
law graduate to do so. The current regulation requires the supervisor 
to accompany the law student or graduate at the request of the 
immigration judge or BIA but does not require the supervisor to enter 
an appearance in the case. As with the proposed filing change for law 
students, this change is similarly intended to ensure that every case 
has a representative who is aware of the case and proceedings and is 
ultimately responsible for proper representation in that case.
---------------------------------------------------------------------------

    \8\ Nothing in the proposed rule precludes a law student or law 
graduate from appearing telephonically provided the immigration 
judge has approved such appearance. In such cases, the supervising 
attorney or accredited representative would be expected to be 
present with the law student or law graduate by telephone.
---------------------------------------------------------------------------

    Moreover, this change is consistent with many state bar rules 
allowing the practice of law by a law student in limited situations, 
but with the presence of a supervising attorney for adjudicatory 
proceedings. See, e.g., N.Y. R. Ct. 805.5(e) (``The supervising 
attorney shall assume personal professional responsibility for any work 
undertaken by a law intern and shall supervise the preparation of the 
intern's work. Immediate supervision of a law intern shall mean that 
the supervising attorney shall be personally present throughout the 
proceedings.'' (emphasis added)); Tenn. R. Sup. Ct. 7, sec. 10.03(h)(2) 
(``It is the responsibility of the supervising attorney to ensure that 
the student is properly supervised and instructed . . . and be present 
for administrative or adjudicatory proceedings'' (emphasis added)). 
Additionally, by requiring the supervising attorney or representative 
to physically \9\ accompany the law student or law graduate, this 
proposed rule intends to avoid unnecessary delays if the law student or 
graduate is unable to proceed with representation. The supervising 
attorney or representative would also need to enter an appearance in 
order to be able to electronically file documents as required by this 
proposed rule.
---------------------------------------------------------------------------

    \9\ If the law student or law graduate were appearing by 
telephone or video teleconferencing, the supervising attorney or 
representative would still need to be physically present with the 
law student or law graduate but would not need to be physically 
present in the immigration court.
---------------------------------------------------------------------------

    This rulemaking also proposes to limit who may accompany the law 
student or law graduate to attorneys and accredited representatives and 
to remove the term ``supervising faculty member.'' This proposed change 
is not intended to prevent faculty members from supervising law 
students, and most law school clinical supervising faculty members are 
already attorneys. Rather, this change would simply require supervising 
faculty members to be attorneys or accredited representatives 
authorized to practice before EOIR, in order to support the goal that a 
licensed attorney or accredited representative be ultimately 
responsible for filings and appearances before EOIR and to avoid 
potentially problematic circumstances in which a law student or law 
graduate is being supervised by a non-attorney or non-accredited 
representative, possibly in contravention of relevant state bar rules.
2. Registration Process
    In order to file electronically with EOIR, an attorney or 
accredited representative must be registered with EOIR. Under existing 
EOIR regulations, all attorneys or accredited representatives are 
already required to enroll in eRegistry as a condition of practice 
before the immigration judges or the BIA. See 8 CFR 1292.1(f). 
Accordingly, no further registration would be required under this 
proposed rule for attorneys or accredited representatives.
    However, in the event that EOIR decides to expand electronic filing 
in the future to persons other than attorneys or accredited 
representatives, EOIR anticipates that those persons who are not 
currently enrolled in eRegistry would be required to complete a one-
time registration through EOIR's eRegistry application, consistent with 
current practice.
    The eRegistry system requires the user to complete an online 
application and, once that application is complete, present 
identification in person at an immigration court or the BIA.\10\ Once 
the user is registered through eRegistry, the user will receive an EOIR 
ID that will allow the user to log in to the electronic filing 
applications and view cases and file documents.\11\
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    \10\ For more information on the eRegistry process, please see 
EOIR, EOIR Courts & Appeals System (ECAS)--Online Filing (Oct. 5, 
2020), https://www.justice.gov/eoir/ECAS.
    \11\ For information regarding the mechanics of the actual 
electronic filing process, please see EOIR, ECAS User Manual, 
https://www.justice.gov/eoir/page/file/1300086/download.
---------------------------------------------------------------------------

3. Cases Eligible for Electronic Filing
    Registered users are only able to electronically file documents in 
a case if that case is eligible for electronic filing. ``Case eligible 
for electronic filing'' means any case that DHS seeks to bring before 
an immigration court after EOIR has formally established an electronic 
filing system for that court or any case before an immigration court or 
the BIA that has an eROP. All cases that are initiated at an 
immigration court or the BIA after that court or the BIA begins using 
the electronic filing and records applications will be processed with 
an eROP.
    For example, if EOIR's electronic filing and records applications 
are implemented at the Los Angeles Immigration Court on November 20, 
2020, all cases in which DHS files a charging document or the alien 
files a bond redetermination request at the Los Angeles Immigration 
Court on November 20, 2020 or later will be processed with an eROP and 
eligible for electronic filing. In contrast, all other pending 
proceedings at the Los Angeles Immigration Court initiated on November 
19, 2020 or earlier will not be eligible for electronic filing, 
including motions to reopen filed in cases initiated before this date.
    This rulemaking proposes to update 8 CFR 1001.1 to include this 
definition for ``case eligible for electronic filing.'' Users will be 
able to see whether a case has an eROP by logging into the electronic 
filing application and searching for the specific case. If the case 
allows documents to be uploaded through the electronic filing 
application, then the case has an eROP. If there is no upload option, 
then the case does not have an eROP, and all documents must be paper 
filed with the proper immigration court or the BIA, as appropriate.
4. Electronic Filing Application Availability
    The proposed regulation would provide guidance for how a party 
subject to electronic filing requirements should proceed if EOIR's 
electronic filing system is unavailable. If EOIR's electronic filing 
system is unavailable due to an unplanned system outage on the last day 
for filing in a specific case, EOIR would evaluate the overall impact 
and make appropriate filing deadline adjustments (e.g., extensions to 
the first day that the electronic filing system becomes accessible that 
is not a Saturday, Sunday, or legal holiday for those cases impacted). 
EOIR would determine whether the electronic filing system is 
unavailable due to a system outage sufficient to trigger the extended 
filing deadline, and EOIR would communicate such outages to external 
users through email, EOIR's website, or other methods of communication, 
as available. Of course, parties maintain the ability to request an 
extension from the immigration court or BIA or to submit a motion to 
accept an untimely filing. See Office of the Chief Immigration Judge, 
Immigration Court Practice Manual 37, 39-40 (Nov. 16, 2020), https://www.justice.gov/eoir/page/file/1258536/download (last visited Nov. 19, 
2020) (``Immigration

[[Page 78245]]

Court Practice Manual''); Board of Immigration Appeals, Board of 
Immigration Appeals Practice Manual, 34, 66 (Oct. 5, 2020), https://www.justice.gov/eoir/page/file/1324276/download (last visited Nov. 19, 
2020) (``BIA Practice Manual''). Both the immigration court and the BIA 
have the discretion to accept untimely filings. See Immigration Court 
Practice Manual, at 39-40; BIA Practice Manual, at 66. Additionally, in 
the event that EOIR's electronic filing system is unavailable, parties 
are permitted to file paper motions or requests for extensions.
    This unplanned unavailability policy tracks the federal courts' 
policy for their electronic filing system. See Fed. R. Civ. P. 
6(a)(3)(A); Fed. R. App. P. 26(a)(3)(A). It also follows the electronic 
filing requirements for many state judicial systems as well. See, e.g., 
Tenn. R. Sup. Ct. 46, sec. 5.02 (``In the event the e-filing system is 
offline for technical reasons for a significant portion of a particular 
day, the clerk, in his or her discretion, is authorized to issue a 
written declaration that the e-filing system is unavailable for filing 
on that day, in which event all filings due on that day from Registered 
Users shall be deemed to be timely if filed the following day.'').
    On the other hand, if EOIR's electronic filing system is 
unavailable due to a planned, previously announced \12\ system outage 
on the last day for filing in a specific case, this proposed rule would 
provide that the user must plan accordingly to electronically file the 
documents during system availability or be prepared to file the 
documents on paper with the proper immigration court or the BIA in 
order to meet any applicable filing deadlines. EOIR would communicate 
these planned outages to external users through email, EOIR's website, 
or other methods of communication, as available.
---------------------------------------------------------------------------

    \12\ Any system outage announced three or fewer business days 
prior to the start of the outage will be treated as an unplanned 
outage.
---------------------------------------------------------------------------

    This proposed rule would not change the immigration judges' or 
BIA's authority to determine how to treat an untimely filing or prevent 
parties from making a motion to accept the untimely filing. See 
Immigration Court Practice Manual, at 39-40; BIA Practice Manual, at 
33-40.
5. Filing Classified Information
    EOIR's electronic filing and records applications are not rated for 
classified information. Users should not file classified information 
through EOIR's electronic filing application, and the application does 
not change the users' or the agency's responsibilities related to 
classified information. Users would need to file any classified 
information by paper and follow existing procedures for the filing of 
classified information. See EOIR, Operating Policies and Procedures 
Memorandum 09-01, Classified Information in Immigration Court 
Proceedings (Feb. 5, 2009), https://www.justice.gov/sites/default/files/eoir/legacy/2009/02/11/09-01.pdf. EOIR immigration court staff 
will maintain a paper record for any filing that contains classified 
information.
6. Receipt and Rejection of Filings
    EOIR also proposes to move and update the ``filing'' definition 
currently located in 8 CFR 1003.13 to the general definition section in 
8 CFR 1001.1 so that it will apply to both the immigration courts and 
the BIA. That proposed definition further explains when both electronic 
and paper filings are deemed filed and makes clear that improper 
filings that are rejected are not deemed ``filed.'' \13\ See generally 
Immigration Court Practice Manual, at 33-34, 38-40; BIA Practice 
Manual, at 31-33, 34. The bases for rejecting filings track those 
already applied by the BIA and the immigration courts as outlined in 
each's respective practice manual. See Immigration Court Practice 
Manual, at 33-34, 38-40; BIA Practice Manual, at 31-334.
---------------------------------------------------------------------------

    \13\ Consistent with analogous state laws, the proposed 
definition also recognizes a discretionary safety valve to allow an 
individual whose fee waiver request is denied to either pay the fee 
or resubmit a new fee waiver request within 10 days before the BIA 
or an immigration judge will reject the filing as improper. See, 
e.g., Cal. Govt. Code 68634(g) (``If an application [for a fee 
waiver] is denied in whole or in part, the applicant shall pay the 
court fees and costs that ordinarily would be charged, or make the 
partial payment as ordered by the court, within 10 days after the 
clerk gives notice of the denial, unless within that time the 
applicant submits a new application'').
---------------------------------------------------------------------------

B. Service

    This rulemaking also proposes to change how service of process is 
accomplished in cases before the immigration courts and the BIA. 
Currently, the parties must simultaneously serve on the opposing party 
a copy of all documents filed with the immigration courts and the BIA. 
See, e.g., 8 CFR 1003.3(a)(1), (c)(1), 1003.23(b)(1)(ii), 1003.32(a). 
This service must be accomplished in person or by first-class mail. See 
8 CFR 1003.32(a), BIA Practice Manual, at 36. Similarly, under the 
current regulations, the immigration courts and the BIA must serve 
copies of court documents, such as orders, notices, and decisions, in 
person or by mail. See, e.g., 8 CFR 1003.1(f), 1003.37(a).
    In this proposed rule, EOIR proposes to move the ``service'' 
definition currently located in 8 CFR 1003.13 to the general definition 
section in 8 CFR 1001.1 so that it will apply to both the immigration 
courts and the BIA. EOIR also proposes updates to various cross-
references to service of process accordingly.
    In order to provide a simpler and more efficient filing process, 
EOIR proposes to complete service electronically on behalf of the 
parties for all cases in which both parties are using electronic 
filing. When a party successfully uploads a document to EOIR's 
electronic filing application and the other party is also using 
electronic filing in that case, EOIR's application will send the 
parties an electronic notification that the eROP has been updated. This 
will simplify the filing process for electronic filers by only 
requiring them to file their documents with EOIR in eligible cases 
rather than needing to execute multiple mailings to complete service 
requirements.
    On the other hand, if another party is not participating in 
electronic filing for that particular case, EOIR's electronic filing 
application will alert the user that the opposing party is not 
participating in electronic filing for that particular case and remind 
the filer of the responsibility to complete service of process on the 
opposing party. Consistent with existing practice, the filer must 
include a certificate of service with each filing as proof of completed 
service on the opposing party.
    EOIR also proposes to update the ``service'' definition to allow 
parties and EOIR the option to complete service electronically. In 
situations where the parties need to complete service outside of the 
electronic filing application, the parties may complete service 
electronically,\14\ or by personal or mail service, which are the 
current options for completing service. EOIR anticipates that this will 
provide significant efficiencies to the parties by eliminating the need 
to print and mail documents to each other.
---------------------------------------------------------------------------

    \14\ The DHS, Immigration and Customs Enforcement (``ICE''), 
Office of the Principal Legal Advisor currently accepts electronic 
service through their eService portal. For more information, please 
visit https://eserviceregistration.ice.gov/.
---------------------------------------------------------------------------

    EOIR further proposes to serve EOIR-generated documents, such as 
orders, decisions, and notices, by electronic notification to parties 
that are participating in electronic filing. This notification will 
constitute completed service and begin the appeal clock, if applicable. 
If a party is not participating

[[Page 78246]]

in electronic filing, EOIR will continue to serve EOIR-generated 
documents in person or by mail on that party.
    In order for EOIR to effectuate electronic service, the parties 
must maintain a valid email address within the eRegistry application. 
If a user's email address changes, the user must immediately update the 
relevant eRegistry account and file a new Form EOIR-27 or EOIR-28, as 
applicable, in each case with the updated email address. EOIR will 
consider service completed when the electronic notification is 
delivered to the last email address on file provided by the user, 
similar to the existing paper mail service provision for Notices to 
Appear and hearing notices. Cf. INA 239(c), 8 U.S.C. 1229(c) (``Service 
by mail under this section shall be sufficient if there is proof of 
attempted delivery to the last address provided by the alien . . . 
.'').

C. Signatures

    This rulemaking proposes to provide standards for signatures. With 
this proposed rule, EOIR proposes to allow four types of signatures, 
depending on the document being filed and the method by which the 
document is being filed: (1) Original, handwritten ink signatures; (2) 
encrypted, digital signatures; (3) electronic signatures; and (4) 
conformed signatures.\15\ Thus, this proposed rule would incorporate 
existing EOIR policy regarding signatures, Policy Memorandum 20-11, 
Filings and Signatures (Apr. 3, 2020), https://www.justice.gov/eoir/page/file/1266411/download (last visited Nov. 19, 2020), while also 
allowing conformed signatures in certain circumstances.
---------------------------------------------------------------------------

    \15\ Digital signatures are defined as signatures performed via 
a recognized system that provides Personal Key Infrastructure (PKI) 
from the signer at the time of signing. EOIR Policy Memorandum 20-
11, Filings and Signatures (Apr. 3, 2020), https://www.justice.gov/eoir/page/file/1266411/download (last visited Nov. 19, 2020). 
Electronic signatures are defined as signatures performed using a 
device that does not provide PKI at the time of signing (e.g., 
stylus and touchpad). Id. at 1 n.2. Any type of signature--wet, 
digital, or electronic--may be subject to a challenge in immigration 
proceedings to its authenticity, though EOIR expects that any such 
challenge will be brought only in good faith. Id. at 2. 
Additionally, any type of signature may be authenticated, as 
necessary, using any means identified in Federal Rule of Evidence 
901. Id.
---------------------------------------------------------------------------

    First, EOIR proposes to accept documents with original, handwritten 
ink signatures, encrypted digital signatures, or electronic signatures, 
whether filing electronically or on paper. If filed electronically, the 
document may be signed with an encrypted, digital signature; an 
electronic signature; or an original, handwritten ink signature and 
then scanned for upload to the electronic filing application. If a user 
signs a document using an encrypted digital signature but EOIR's 
electronic filing application is unavailable, the user may print the 
document with the digital signature and paper file the document with 
the immigration court.
    Second, EOIR proposes to allow users to sign their own name with a 
conformed signature on documents filed through EOIR's electronic filing 
application. Conformed signatures will not be accepted for anyone other 
than the user who is submitting the document. Conformed signatures 
typically consist of the user typing ``/s/'' and the user's name into 
the signature block. For example: ``/s/John Smith.'' By signing into 
the electronic filing application, the user has demonstrated that they 
have completed identity verification through the eRegistry process 
described in Section III.A.2., thereby allowing the use of a conformed 
signature. EOIR seeks public comment as to whether this safeguard, 
which employs all Department-mandated information security protocols, 
is sufficient, whether there are other more effective methods for 
identity-proofing online filers who do not have the same financial or 
U.S. ``footprint'' that can be used for remote verification of the 
person's identity, or whether the user should need to re-input 
credentials at the time of each electronic filing.
    These proposed signature rules would be subject to any specific 
form, application, or document signature requirements. For example, if 
an application's instructions require an original, handwritten ink 
signature, then the user must follow the application instructions 
instead of the proposed signature allowances in this proposed rule. In 
practice, if the user was electronically filing, the user would sign 
the application in ink and then scan and electronically file the 
application with EOIR. The user would also be required to make the 
original available upon request.

D. Electronic Payments

    EOIR imposes a fee for filing many types of documents. See 
generally 8 CFR 1103.7. Currently, the immigration courts do not 
directly accept fee payments for any documents that require a fee. 
Instead, filers must make these fee payments to DHS and then provide 
proof of the payment to the immigration courts. This proposed rule does 
not change this payment structure at the immigration courts. Under this 
proposed rule, electronic filers would be able to submit a scanned copy 
of the filing fee receipt as part of their electronic submission.
    In contrast, the BIA directly accepts payments for certain 
documents that require a fee. See generally 8 CFR 1003.8. In October 
2020, EOIR launched the EOIR Payment Portal, which allows users to make 
electronic payments for filings at the BIA, as provided in 8 CFR 
1003.8. See EOIR, EOIR Payment Portal (Nov. 19, 2020), https://epay.eoir.justice.gov/. As a result, this rulemaking proposes to 
broaden the references to payments at the BIA in 8 CFR 1003.2 and 
1003.3 in order to account for these changes.

E. Duplicate Copies

    This rulemaking proposes to update 8 CFR 1003.23 to remove the 
requirement for parties to file multiple ``in duplicate'' copies of a 
motion to reopen or a motion to reconsider if they are filing 
electronically. However, in duplicate copies would still be required 
for paper filings.

F. Technical Amendments

    When updating existing regulatory sections, this rulemaking also 
proposes a number of technical amendments. These include updating 
outdated references from ``the Service,'' ``Service counsel,'' and 
``Office of the District Counsel'' to ``DHS,'' ``DHS counsel,'' and 
``ICE Office of the Principal Legal Advisor'' in 8 CFR 1001.1, 1003.1, 
1003.2, 1003.3, 1003.23, 1003.31, 1214.2, 1240.2, 1240.10, 1240.11, 
1240.13, 1240.26, 1240.32, 1240.33, 1240.48, 1240.49, 1240.51, 1245.21, 
and 1246.5, and lowercasing terms ``Immigration Judge'' and 
``Immigration Court'' in 8 CFR 1003.2, 1003.17, 1003.23, 1003.31, 
1003.32, 1003.37, 1003.38, and 1208.4 consistent with regulatory style 
guidelines. The rulemaking also proposes to update a reference at 8 CFR 
1003.1(f) regarding service on a representative from part 292, which is 
a DHS regulation, to part 1292, which is an EOIR regulation.

IV. Regulatory Requirements

A. Regulatory Flexibility Act

    The Department has reviewed this proposed rule in accordance with 
the Regulatory Flexibility Act and has determined that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. See 5 U.S.C. 605(b). As proposed, this 
rulemaking regulates attorneys and accredited representatives, most of 
whom qualify as ``small entities'' under the Regulatory Flexibility 
Act. See 5 U.S.C. 601(3)-(4), (6). However, all attorneys and

[[Page 78247]]

accredited representatives already are required to enroll in eRegistry 
in order to practice before EOIR. Thus, they are already eligible to 
participate in the electronic filing process, which is currently being 
made available in many locations through a voluntary pilot program. 
This proposed rule, when finalized, would make the use of electronic 
filing mandatory in eligible cases.
    The Department anticipates that the adoption of electronic filing 
will lead to substantial net cost savings for these attorneys and 
accredited representatives because they would no longer be required to 
bear the burdens and expenses of mailing or serving paper copies in 
each of their cases for filings submitted to the immigration court or 
to the BIA or for service of process on opposing counsel. Therefore, 
this proposed rule will not have an adverse economic effect on 
attorneys or accredited representatives, but instead is expected to 
result in significant cost savings. A more detailed analysis of the 
costs and benefits of this proposed rule are detailed in Section IV.D.

B. Unfunded Mandates Reform Act of 1995

    This proposed 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. Congressional Review Act

    This proposed rule is not a major rule as defined by section 804 of 
the Congressional Review Act. 5 U.S.C. 804(2). This proposed rule will 
not result in an annual effect on the economy of $100 million or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

D. Executive Order 12866 and Executive Order 13563 (Regulatory Planning 
and Review)

    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). The 
Office of Information and Regulatory Affairs of the Office of 
Management and Budget (``OMB'') has determined that this proposed rule 
is not a ``significant regulatory action'' under section 3(f) of 
Executive Order 12866. It will neither result in an annual effect on 
the economy greater than $100 million nor adversely affect the economy 
or sectors of the economy. It does not pertain to entitlements, grants, 
user fees, or loan programs, nor does it raise novel legal or policy 
issues. It does not create inconsistencies or interfere with actions 
taken by other agencies. Accordingly, this proposed rule is not a 
significant regulatory action subject to review by OMB pursuant to 
Executive Order 12866.
    Executive Order 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, 
and other advantages; distributive impacts; and equity). Executive 
Order 13563 emphasizes the importance of using the best available 
methods to quantify costs and benefits, reducing costs, harmonizing 
rules, and promoting flexibility. The Department certifies that this 
regulation has been drafted in accordance with the principles of 
Executive Order 13563.
1. ECAS-Related Costs and Savings
    The Department estimates that implementation of ECAS will result in 
a total savings of $68,105,250 over the first 10 years of its 
implementation.\16\ Specifically, the Department estimates that 
electronic filing will cost EOIR $32,896,179 over 10 years, primarily 
due to increased technology costs to implement and maintain the new 
technology infrastructure. These costs are outweighed, however, by the 
predicted savings to the public--$101,001,429, which primarily relate 
to cost savings from no longer having to file documents via mail or in 
person. These costs and savings for EOIR and the public are discussed 
in further detail individually below.
---------------------------------------------------------------------------

    \16\ All dollar amounts cited in this discussion are calculated 
to correspond with what would have been the value in December 2016 
using the U.S. Bureau of Labor Statistics (BLS) Consumer Price Index 
inflation calculator found at https://www.bls.gov/data/inflation_calculator.htm (last visited Nov. 19, 2020).

  Table 1--Overview of Total Cost and Savings: EOIR and the Public \17\
------------------------------------------------------------------------
                         Entity                            Savings/costs
------------------------------------------------------------------------
EOIR....................................................   ($32,896,179)
    OCIJ................................................      12,910,888
    BIA.................................................       2,710,950
    OIT.................................................    (51,275,937)
    OGC.................................................       2,757,920
Public..................................................     101,001,429
                                                         ---------------
    Total...............................................      68,105,250
------------------------------------------------------------------------

    Despite  the financial cost to EOIR to develop and maintain the 
technology for ECAS, the Department believes that electronic filings 
will be a net benefit for the agency. During the electronic filing 
pilot program, EOIR has already begun to realize efficiencies in case 
processing. For example, in Fiscal Year (``FY'') 2019 DHS initiated 
37,074 cases electronically (out of 465,790 cases initiated in the same 
time period), and 161 bond proceedings were initiated electronically. 
According to internal pilot metrics, charging documents filed 
electronically at the pilot sites are being processed nearly 10 times 
faster than charging documents filed in paper. Similarly, the time it 
takes to receive and process a non-charging supporting document is 
approximately 25 percent faster than processing a paper-filed 
supporting document. This represents a significant savings in terms of 
court staff time and in terms of the overall processing time for the 
2,574 electronically filed motions that EOIR has received during the 
ECAS pilot program. This proposed rule will only increase these time 
savings when all attorneys and accredited representatives begin filing 
documents electronically.
---------------------------------------------------------------------------

    \17\ Savings listed are an overestimation as they include all 
filings, rather than only those filings that can be done 
electronically at this time (i.e., the savings include filings by 
pro se respondents who cannot yet use ECAS).
---------------------------------------------------------------------------

a. Office of the Chief Immigration Judge
    The Department estimates that implementation of the proposed rule 
will reduce the immigration courts' costs by the equivalent of 
approximately $12.9 million over the first 10 years of implementation. 
This reduction includes the cost of labor that will be reallocated to 
other tasks due to the more efficient processing of electronic 
documents. Cost changes for the courts will be realized primarily in 
initial case processing; individual hearing processing; and processing 
and shipping costs for changes of venue, appeals, and records 
retirement.
    To reach its estimates, the Department determined the costs for 
adjudicating a

[[Page 78248]]

typical case after the implementation of the proposed regulation. Using 
this methodology, the Department identified and analyzed three separate 
scenarios: (1) Legacy paper ROPs that were started but not completed 
before this proposed rule; (2) eROPs for pro se respondents that are 
submitted in paper and scanned by court staff; and (3) eROPs for 
represented respondents that are completely electronic.
    The Department then estimated the economic impact of the proposed 
regulation on the immigration courts for each of the next 10 years by 
calculating the average costs for each of the three scenarios above; 
multiplying each scenario's average cost by the expected annual number 
of cases received for the immigration courts and expected annual 
hearings for the immigration courts in each scenario over the next 
decade; separately calculating the baseline cost (i.e., the cost 
without mandatory electronic filing), using existing time estimates and 
labor rates, for the next 10 years; and subtracting the post-regulation 
cost from the baseline cost for each of the next 10 years.
    This economic impact reflects labor hours that will be saved in 
terms of dollars. In actuality, labor can be reallocated to higher-
impact tasks, and more efficient labor usage could offset future hiring 
and resource needs, which may lead to more quantifiable realized 
savings. As shown in Table 2, the expected cost savings increase every 
year. This is a result of legacy paper ROPs leaving the system as cases 
are adjudicated and a higher percentage of the future pending cases 
having mandatory eROPs as a result of this regulation.

       Table 2--Office of the Chief Immigration Judge Cost Savings
------------------------------------------------------------------------
                                                           Expected cost
                          Year                                savings
------------------------------------------------------------------------
1.......................................................        $140,304
2.......................................................         526,622
3.......................................................         816,841
4.......................................................       1,115,708
5.......................................................       1,320,399
6.......................................................       1,500,104
7.......................................................       1,666,355
8.......................................................       1,816,269
9.......................................................       1,947,925
10......................................................       2,060,361
                                                         ---------------
    Total...............................................      12,910,888
------------------------------------------------------------------------

    Since all paper-filed documents, per this new regulation, will be 
scanned and maintained in an eROP, initial case processing is estimated 
to become marginally more expensive as court staff must scan the paper 
documents into the eROP. However, this increase in cost will be 
outweighed by the time savings, calculated in terms of the cost of 
labor, for individual hearing processing and change of venue 
processing, as filing becomes more expeditious for court staff in each 
individual case. Additionally, annual shipping costs will be reduced, 
since changes of venue, appeals, and records retirement transfers will 
occur electronically instead of manually shipping the paper ROP to 
another court, the BIA, or the Federal Records Center.
    Cost changes have been calculated with the assumption that all 
other processes remain the same. However, eROPs enable the possibility 
of further cost savings through more efficient case adjudication. For 
example, widely available eROPs may enable immigration judges to hear a 
case via video teleconference (``VTC'') almost instantly. Under the 
current paper ROP system, the ROP needs to be shipped to the 
immigration judge's location before a VTC hearing can be held. In 
contrast, an eROP could enable a judge to open any eROP and hear a case 
immediately. This new paradigm has the potential to improve the 
efficiency of workload adjudication by judges and their staff.
    EOIR may also realize savings through the reduced growth of storage 
requirements at court locations. EOIR currently stores paper ROPs at 
immigration courts, utilizing valuable storage space in courtrooms, 
offices, and hallways. Conversion to an eROP system may ease the strain 
on the system as new pending cases will have an eROP that will not 
require physical storage space. With the information currently 
available, storage space utilization and savings cannot be specifically 
calculated. However, this regulation will likely reduce costs for the 
immigration courts by allowing current space to be used for functional 
purposes, rather than storage.
b. Board of Immigration Appeals
    The Department also estimates that implementation of the proposed 
regulation will reduce the BIA's costs by approximately $2.7 million 
over the first 10 years of implementation. Cost changes for the BIA 
will be realized in three main process areas: Scanning pro se ROPs; 
receiving ROPs from the immigration courts; and returning ROPs to the 
immigration courts.

                       Table 3--BIA Costs Savings
------------------------------------------------------------------------
                                                           Expected cost
                          Year                                savings
------------------------------------------------------------------------
1.......................................................       ($23,064)
2.......................................................         176,822
3.......................................................         201,808
4.......................................................         250,818
5.......................................................         285,414
6.......................................................         314,243
7.......................................................         342,112
8.......................................................         367,098
9.......................................................         388,240
10......................................................         407,459
                                                         ---------------
    Total...............................................       2,710,950
------------------------------------------------------------------------

    The impacts to the BIA largely mirror the immigration courts in 
that scanning paper filings into the eROP is likely to increase costs 
by increasing staff workload. Further, the largest cost savings are 
likely to come from reduced shipping. The BIA's process requires that 
all ROPs sent to the BIA from the immigration court must be shipped 
back to the court upon completion of the appeal. Shipping costs will be 
eliminated for future eROPs because they will be transferred 
electronically, reducing costs for the BIA.
c. Office of Information Technology
    The Department estimates that the implementation of the proposed 
rule will increase EOIR's Office of Information Technology's (``OIT'') 
costs by a total of approximately $51.3 million across the first 10 
years of implementation. These costs are due to the additional effort 
required to develop, deploy, and maintain the electronic infrastructure 
that serves as the backbone for electronic filing.
    Because OIT developed the tools and processes necessary for the 
implementation of mandatory electronic filing throughout EOIR, it is 
the largest driver of quantifiable costs from mandatory electronic 
filing implementation. The deployment and training for mandatory 
electronic filing will be particularly resource-intensive for OIT, as 
it will be responsible for the deployment and maintenance of the 
hardware and software necessary to digitize and store documents along 
with delivering training to court staff. Costs related to electronic 
filing deployment are estimated to be approximately $21.7 million, 
including $2.3 million in hardware purchases, $1.7 million in travel to 
deliver training and install systems, and $3.4 million in external 
services, software, and licensing for necessary cloud computing 
services.

[[Page 78249]]



                                 Table 4--OIT Electronic Filing Deployment Costs
----------------------------------------------------------------------------------------------------------------
                            Category                                  Year 1          Year 2           Total
----------------------------------------------------------------------------------------------------------------
External Services (e.g., MS Azure Premier Access)...............        $999,429        $999,429      $1,998,858
Software........................................................         625,988         726,171       1,352,159
Travel..........................................................         830,295         830,295       1,660,590
Labor/Hardware \18\.............................................      11,316,689       5,355,028      16,671,717
Support Labor:
    Program Support.............................................       1,717,020         900,298       2,617,318
    Training....................................................         754,782         431,820       1,186,602
    Service Desk/Operations.....................................         482,417         482,417         964,834
Product Labor:
    eROP........................................................       2,699,130       1,322,681       4,021,811
    Electronic Filing...........................................       3,741,362       1,833,416       5,574,778
Hardware........................................................       1,921,978         384,396       2,306,374
                                                                 -----------------------------------------------
    Total.......................................................      13,772,401       7,910,923      21,683,324
----------------------------------------------------------------------------------------------------------------

    Costs  are estimated to be highest in the first year of the 
deployment, as hardware is purchased, software systems are finalized 
and implemented, and training is delivered to court staff. Costs are 
estimated to decrease by over 40 percent in the second deployment year 
as OIT completes training court staff and transitions to a steady state 
of software and hardware maintenance. The cost reductions in the second 
year of deployment will be driven by a 47 percent reduction in labor 
costs and an 80 percent reduction in hardware costs.
---------------------------------------------------------------------------

    \18\ Labor/Hardware represents a total of the individual 
categories of support labor, product labor, and hardware.
---------------------------------------------------------------------------

    Once training and deployment are complete, OIT's costs will 
stabilize. While OIT will no longer incur costs related to training 
court staff, OIT will be using more labor than before mandatory 
electronic filing. This is due to the additional staff necessary to 
provide help desk support to the courts and IT services related to the 
electronic filing system. OIT will also continually accrue expenses for 
cloud computing platform licensing and hardware repairs, upgrades, and 
replacements required to support electronic filing. OIT estimates that 
overall costs will increase by approximately 1 percent each year, 
primarily driven by increases in labor costs. These ongoing expenses 
will represent the new steady state for OIT. The eight years following 
completion of the deployment phase are estimated to cost an additional 
$29.6 million due to mandatory electronic filing.

                                Table 5--OIT Electronic Filing Steady State Costs
----------------------------------------------------------------------------------------------------------------
            Category                  Year 3          Year 4        . . . \19\        Year 10          Total
----------------------------------------------------------------------------------------------------------------
External Services (e.g., MS             $999,429        $999,429                        $999,429      $7,995,430
 Azure Premier Access)..........
Software........................         366,521         366,521                         366,521       2,932,169
Travel..........................               0               0                               0               0
Labor/Hardware..................       2,227,541       2,255,993                       2,443,930      18,665,013
Support Labor:
    Program Support.............         239,564         239,564                         239,564       1,916,512
    Training....................         172,728         172,728                         172,728       1,381,825
    Service Desk/Operations.....         482,417         482,417                         482,417       3,859,334
Products Labor:
    eROP........................         466,808         480,812                         573,312       4,150,211
    Electronic Filing...........         481,628         496,076                         591,513       4,281,966
Electronic Filing Hardware......         384,396         384,396                         384,396       3,075,166
                                 -------------------------------------------------------------------------------
    Total.......................       3,593,491       3,621,943                       3,809,880      29,592,613
----------------------------------------------------------------------------------------------------------------


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

    \19\ Years 5 through 9 are not included in this visual, but are 
factored into the totals calculation. OIT estimates that labor costs 
will increase by 3 percent per year. Non-labor costs, such as 
hardware, software, and external services, remain constant through 
each year.
---------------------------------------------------------------------------

    As mandatory filing is implemented and electronic filing 
progresses, the Department anticipates that this will lead to 
significant additional efficiencies in case processing. This may 
include more expeditious case scheduling and adjudication, improved 
data quality, increased performance monitoring and tracking, augmented 
data analytics capabilities, and better alignment with information 
storage best practices. There may also be further impacts to EOIR's 
internal data-informed decision-making process, as the digitization of 
the data may allow for increased analysis of the relationship between 
various practices, procedures, and outcomes.
d. Office of General Counsel
    The Department estimates that the implementation of the proposed 
rule will increase efficiencies for the EOIR Office of the General 
Counsel (``OGC'') programs. For example, digitization of files will 
allow for more expeditious compliance with Freedom of Information Act 
(``FOIA'') and other requests for information, reducing the time burden 
of such activities on EOIR staff. Specifically, the Department 
estimates that costs associated with FOIA compliance will decrease by 
approximately $2.8 million across the first 10 years of implementation. 
These savings will be realized through reduced shipping costs in the 
FOIA response process as more ROPs are accessible

[[Page 78250]]

electronically instead of requiring storage retrieval and shipping.
    As electronic filing becomes more widespread, the proportion of 
FOIA requests that can be satisfied through electronic records searches 
will proportionally increase. A higher percentage of the future pending 
caseload will have mandatory eROPs as a result of this regulation, 
which will cause the ratio of eROPs to paper ROPs, and thus expected 
cost savings, to increase over time, as detailed in Table 6.
---------------------------------------------------------------------------

    \20\ FOIA volume is estimated at 50,000 per year, an 
approximation based on EOIR's FY 2018 FOIA volume.

                        Table 6--OGC Cost Savings
------------------------------------------------------------------------
                                                           Expected cost
                        Year \20\                             savings
------------------------------------------------------------------------
1.......................................................              $0
2.......................................................               0
3.......................................................          60,052
4.......................................................         203,084
5.......................................................         295,661
6.......................................................         360,279
7.......................................................         404,478
8.......................................................         443,370
9.......................................................         479,318
10......................................................         511,678
                                                         ---------------
    Total...............................................       2,757,920
------------------------------------------------------------------------

    The public may also see the added qualitative benefit of more 
expeditious FOIA compliance, as OGC will not have to wait for records 
to be shipped between locations to satisfy FOIA requests and will 
instead be able to search and access the records electronically.
e. The Public
    The benefits to the public are high as well. Parties will be able 
to file documents at any time of day from any location with internet, 
thereby reducing postage costs and the need to physically appear at an 
immigration court during business hours. For many parties, this will be 
a substantial benefit, as the nearest immigration court may be hours 
away. The parties will also be able to view the eROP electronically, 
providing instant access to necessary documents and eliminating the 
need to appear at the immigration court to view the paper record. 
Further, parties will save on paper and toner costs required to print 
copies of filings, and costs associated with required process service.
    The Department believes that the biggest savings to the parties 
before EOIR will be from reduced costs associated with mailing or hand-
delivering filings that would have been incurred without the 
implementation of electronic filing. In FY 2018, EOIR's immigration 
courts received 311,761 paper filings and 2,555 electronic filings,\21\ 
and the BIA received 49,522 paper filings.\22\ While EOIR does not keep 
data regarding what methods (e.g., Federal Express (``FedEx''), United 
States Postal Service (``USPS''), hand delivery by an attorney's office 
or a pro se party, or local courier) are used to file paper documents 
with EOIR and to serve those filings on the opposing party, anecdotal 
evidence points to filings with the immigration courts and the BIA and 
service on the opposing party typically being sent using FedEx or 
courier to ensure filings are timely. This is particularly true for 
filings with the BIA, because the filer must ensure actual receipt by 
the BIA in Falls Church, Virginia no later than the close of business 
of the clerk's office on the established deadline.
---------------------------------------------------------------------------

    \21\ These numbers represent the paper and electronic filing of 
initial Forms I-862, Notice to Appear, and I-863, Notice of Referral 
to the Immigration Judge, by DHS at the immigration courts 
nationwide for the fiscal year. EOIR does not have data regarding 
the number of paper vs. electronic filings directly by aliens in 
proceedings or their representatives, such as the relative number of 
paper vs. electronically filed motions, applications for relief or 
protection, or evidence packets. Accordingly, this analysis uses the 
number of electronic and paper filings by DHS as a proxy for those 
by the aliens and their representatives since EOIR does not have 
similar data for that population but would expect the percentage of 
paper and electronic to be the same for both.
    \22\ See EOIR, Statistics Yearbook: Fiscal Year 2018 (Aug. 30, 
2019), https://www.justice.gov/eoir/file/1198896/download (last 
visited Nov. 19, 2020). As with the immigration courts, the 
Department uses the number of cases filed at the BIA as a proxy for 
the number of filings at the BIA because the Department does not 
have specific data regarding the number of individual filings by the 
parties.
---------------------------------------------------------------------------

    To analyze the cost savings related to these filings that 
electronic filing would have on the public, EOIR considered the average 
costs of sending filings through FedEx and USPS, the hourly rates for 
couriers and immigration attorneys, and the time savings from avoiding 
use of the immigration courts' intra-office mailing systems. Based on 
these preliminary estimates and filings from the previous year, if 
filers used FedEx for one-third of filings and used USPS for two-thirds 
of filings, electronic filing would have saved filers $38,778.55 in 
FedEx and USPS costs in the five pilot courts in FY 2018.\23\ This is 
compared to a cost of $1,959,360.15 in FedEx costs \24\ and 
$2,772,396.55 in USPS filing costs \25\ (assuming one-third filings via 
FedEx and two-thirds filings via USPS) in the other 55 courts. These 
estimates are based on an $18.85 average FedEx filing rate ($8.57 
average Express Saver cost + $20.03 average second day cost + $27.97 
overnight cost, divided by three) and a $13.34 average USPS filing rate 
($7.75 average priority mail + $28.59 average priority mail express + 
$3.68 first-class parcel, divided by three). The Department notes that 
this savings is likely an underestimate due to the tendency for many 
filers to use next day service.
---------------------------------------------------------------------------

    \23\ 852 filings * $18.85 average FedEx cost + 1,703 filings * 
$13.34 average USPS cost.
    \24\ 103,920 filings * $18.85 average FedEx cost.
    \25\ 207,841 filings * $13.34 average USPS cost.
---------------------------------------------------------------------------

    According to the U.S. Bureau of Labor Statistics, the mean hourly 
wage for couriers, such as those the individuals law firms may hire to 
delivery documents to the immigration court, is $14.13. U.S. Bureau of 
Labor Statistics, Occupational Employment Statistics: Occupational 
Employment and Wages, May 2018: 43-5021 Couriers and Messengers, 
https://www.bls.gov/oes/2018/may/oes435021.htm (last updated Mar. 29, 
2019).\26\ Further, if an attorney makes the trip to the immigration 
court or to the BIA to handle the filing, the average cost would be 
$66.54 for one hour of work.\27\ Assuming that approximately one-
quarter of paper filings are handled via a courier, one-quarter of 
paper filings are handled via an attorney,\28\ and one-half are filed 
using USPS or FedEx, with two-thirds of those via USPS and one-third 
via FedEx, the cost savings to the public of eFiling in the five pilot 
courts was approximately $70,917.24 ($8,028.85 for FedEx \29\ + 
$11,360.42 for USPS \30\ + $42,502.43 for the attorneys \31\ + 
$9,025.54 for the couriers \32\).
---------------------------------------------------------------------------

    \26\ $14.72 in May 2018 is equivalent to $14.13 in December 
2016.
    \27\ U.S. Bureau of Labor Statistics, Occupational Employment 
Statistics: Occupational Employment and Wages, May 2018: 23-1011 
Lawyers, https://www.bls.gov/oes/2018/may/oes231011.htm (last 
visited Nov. 19, 2020) (stating the mean hourly wage in May 2018 was 
$69.34). $69.34 in May 2018 is equivalent to $66.54 in December 
2016.
    \28\ This calculation further assumes that the filings would 
require one hour of time by the attorney or courier.
    \29\ 426 filings * $18.85 average FedEx cost.
    \30\ 852 filings * $13.34 average USPS cost.
    \31\ 639 filings * $66.54 mean hourly attorney wage.
    \32\ 639 filings * $14.13 mean hourly courier wage.
---------------------------------------------------------------------------

    Overall, the Department's estimates predict an annual savings to 
the public from electronic filing before the immigration courts and the 
BIA of approximately $10,100,142.88 ($70,917.24/2,555 filings = $27.76; 
$27.76 * (311,761 + 2,555 + 49,522 = 363,838 total filings)). Over the 
course of 10 years, these savings would equal $101,001,428.80 if the 
annual number of filings remains constant. The Department, however, 
expects that the true savings will be higher as EOIR hires additional 
immigration judges and

[[Page 78251]]

opens additional immigration courts, expanding the annual case 
processing capacity. See, e.g., EOIR, Executive Office for Immigration 
Review Adjudication Statistics: New Cases and Total Completions (Oct. 
13, 2020), https://www.justice.gov/eoir/page/file/1060841/download 
(last visited Nov. 19, 2020) (showing that initial case completions 
increased from 195,106 in FY 2018 to 276,918 in FY 2019). Further, 
additional savings are expected based on gas and tolls, paper, toner, 
and other office supplies.
---------------------------------------------------------------------------

    \33\ In order to estimate these costs for the public, the 
Department looked to FedEx and USPS rates as a general 
representation for the costs of paper filing via mail or delivery 
service as they are the two most commonly used delivery services for 
filings with the Department.
    \34\ See FedEx, FedEx One Rate Pricing (effective Jan. 7, 2019), 
available at https://www.fedex.com/content/dam/fedex/us-united-states/services/OneRate-Pricing_2019.pdf (last visited Nov. 19, 
2020). As noted, supra, in Footnote 16, these FedEx prices have been 
discounted to reflect their values as of December 2016.

                                Table 7--Cost and Savings for Public (FY18) \33\
----------------------------------------------------------------------------------------------------------------
                                                                                                       FedEx
                    FedEx envelope rates \34\                      FedEx express    FedEx 2 day      standard
                                                                       saver                         overnight
----------------------------------------------------------------------------------------------------------------
FedEx Local (0-150 miles).......................................           $7.64          $17.83          $23.53
FedEx Regional (151-600 miles)..................................            8.16           19.34           25.80
FedEx National (601+ miles).....................................            9.90           22.92           34.57
Average Cost....................................................            8.57           20.03           27.97
Costs of \1/3\ OCIJ Paper Filings (103,920).....................      890,250.86    2,081,524.28   22,906,305.32
Total Costs of \1/3\ BIA Paper Filings (16,507).................      141,412.82      330,641.89      461,655.09
Savings from eFilings (2,555)...................................       21,887.83       51,176.65       71,454.83
----------------------------------------------------------------------------------------------------------------


 
                                                                   Priority mail     Priority       First-class
                     USPS rates by zone \35\                           \36\        express \37\     parcel \38\
----------------------------------------------------------------------------------------------------------------
USPS Zone 1&2 (0-150 miles).....................................           $6.95          $24.43           $3.52
USPS Zone 3 (151-300 miles).....................................            7.28           24.66            3.57
USPS Zone 4 (301-600 miles).....................................            7.42           25.50            3.62
USPS Zone 5 (601-1,000 miles)...................................            7.65           28.47            3.66
USPS Zone 6 (1,001-1,400 miles).................................            7.83           30.37            3.71
USPS Zone 7 (1,401-1,800).......................................            8.21           32.27            3.76
USPS Zone 8 (1,801+)............................................            8.90           34.45            3.89
Average Cost....................................................            7.75           28.59            3.68
Costs of \2/3\ OCIJ Paper Filings (207,841).....................    1,610,468.25    5,942,758.49      763,962.91
Costs of \2/3\ BIA Paper Filings (16,507).......................      255,816.50      943,983.65      121,352.48
Savings from eFilings (2,555)...................................        19,767.6       73,054.75        9,391.45
----------------------------------------------------------------------------------------------------------------

    Documents will also be served by electronic notification where 
applicable, which will provide near-instantaneous service. This will 
particularly benefit the parties when EOIR electronically serves orders 
and decisions on parties participating in electronic filing, as the 
appeal clock begins to run when the order is sent. This will allow the 
parties to begin preparing for any potential appeals immediately 
without having to wait for the order or decision to arrive in the mail 
as is currently the practice.
---------------------------------------------------------------------------

    \35\ This chart does not include the USPS rates for zone 9 as 
there are no immigration court locations in the Republic of Palau, 
Federated States of Micronesia, and the Republic of the Marshall 
Islands. See USPS Office of Inspector General, Audit Report 
Management of Postal Zones, at 4 (March 25, 2019), available at 
https://www.uspsoig.gov/sites/default/files/document-library-files/2020/19RG009MS000-20.pdf (last visited Nov. 19, 2020).
    \36\ These rates correspond with the USPS priority mail rates 
for letters, large envelopes, and parcels that do not exceed one 
pound.
    \37\ These rates correspond with the USPS priority mail express 
rates for letters, large envelopes, and parcels that do not exceed 
0.5 pound.
    \38\ These rates correspond with the USPS first class package 
service rates for retail parcels that do not exceed one ounce.
---------------------------------------------------------------------------

    These potential benefits are reflected in the private bar's long-
standing requests for electronic filing with EOIR. See, e.g., EOIR, 
EOIR/AILA Liaison Meeting (Sept. 26, 2002), https://www.justice.gov/eoir/eoir-aila-sep26-2002. (last visited Nov. 19, 2020). In addition, 
since the July 2018 launch of the electronic filing pilot program, more 
than 15,000 attorneys have signed up for ECAS, indicating a strong 
interest in electronic filing. Moreover, at the pilot sites, 
approximately half of all active attorneys and accredited 
representatives in those sites have signed up for the pilot despite 
having no obligation to participate.
2. Costs and Savings Related to Rules Regarding Law Student and Law 
Graduate Filings
    This rulemaking also proposes changes to law student and law 
graduate filing and accompaniment rules. First, EOIR believes that 
there will be minimal, if any, costs associated with requiring the 
supervisor to electronically file documents with EOIR, rather than the 
law student or law graduate filing on paper. And, if there are any 
associated costs, they will be outweighed by the substantial benefits 
of electronic filing, including immediate access to the eROP and the 
ability to file at any time of day from any location with internet 
access without the cost or reliance on mail carriers.
    As to the proposed accompaniment change, EOIR does not maintain 
data on how many law students appear in immigration court or how many 
of those appear without a supervisor present, though it understands 
that in most cases, a supervisor does accompany the law student. 
Moreover, regardless of EOIR's rules, in many cases a supervisor is 
required to accompany the law student or graduate in order to comply 
with applicable state bar rules. See, e.g., Cal. R. 9.42(d)(3) 
(allowing certified California law students to appear ``on behalf of 
the client in any public trial, hearing, arbitration, or proceeding, or 
before any arbitrator, court, public agency, referee, magistrate, 
commissioner, or hearing officer, to the extent approved by such 
arbitrator, court, public agency, referee, magistrate, commissioner, or 
hearing officer,'' provided that, among other requirements, the 
certified law student ``[p]erforms the activity under the direct

[[Page 78252]]

and immediate supervision and in the personal presence of the 
supervising attorney'').
    EOIR recognizes that in rare cases in which a law school clinic or 
similar program does not currently send a supervising attorney to every 
hearing at which a law student or law graduate appears, there may be 
some increased cost. EOIR expects those increased costs to be minimal, 
however, due to the rarity of cases in which law students and law 
graduates appear unsupervised, as well as the availability of 
telephonic appearances.\39\ Further, EOIR believes that the benefits of 
ensuring that every case has a single licensed representative 
responsible for service of process and ultimate representation in the 
case outweighs the potential costs associated with the increased 
accompaniment requirements.\40\
---------------------------------------------------------------------------

    \39\ Due to the current outbreak of COVID-19, many immigration 
judges have adopted standing orders allowing practitioners to appear 
by telephone without the need for filing a motion. See Immigration 
Court Practice Manual, at Appx. R. Although EOIR cannot predict how 
long such standing orders will remain in effect, it reiterates that 
nothing in this proposed rule precludes a law school clinic from 
filing a motion for a telephonic appearance in order to reduce the 
need for in-person appearances.
    \40\ Although most law school clinics and similar programs only 
take cases at immigrations courts that are located in nearby 
geographic proximity, both to minimize operational and logistical 
difficulties and to avoid the complications of complying with 
practice rules for different state jurisdictions, EOIR also 
recognizes that there may be unique situations in which a law school 
clinic takes a case that requires atypical travel arrangements. In 
that situation, coupled with the similarly unique situation of an 
unsupervised law student appearing alone on behalf of a respondent, 
EOIR acknowledges there may be an increase in cost associated with 
this rule, but the benefit of the rule outweighs any cost associated 
with this highly unlikely situation.
---------------------------------------------------------------------------

E. Executive Order 13132 (Federalism)

    This proposed 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 proposed rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

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

G. Paperwork Reduction Act

    This rulemaking does not propose new or revisions to existing 
``collection[s] of information'' as that term is defined in the 
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 
35, and its implementing regulations, 5 CFR part 1320.

List of Subjects

8 CFR Part 1001

    Administrative practice and procedure, Immigration.

8 CFR Part 1003

    Administrative practice and procedure, Immigration.

8 CFR Part 1208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements

8 CFR Part 1214

    Administrative practice and procedure, Aliens.

8 CFR Part 1240

    Administrative practice and procedure, Immigration.

8 CFR Part 1245

    Aliens, Immigration, Reporting and recordkeeping requirements.

8 CFR Part 1246

    Administrative practice and procedure, Aliens, Immigration.

8 CFR Part 1292

    Administrative practice and procedure, Immigration.

    Accordingly, for the reasons set forth in the preamble, and by the 
authority vested in the Director, Executive Office for Immigration 
Review, by the Attorney General Order Number 410-2020, the Department 
proposes to amend parts 1001, 1003, 1208, 1214, 1240, 1245, 1246, and 
1292 of the Code of Federal Regulations as follows:

PART 1001--DEFINITIONS

0
1. The authority citation for part 1001 continues to read as follows:

    Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107-296, 
116 Stat. 2135; Title VII of Pub. L. 110-229.

0
2. Amend Sec.  1001.1 by revising paragraph (s) and adding paragraphs 
(cc), (dd), and (ee) to read as follows:


Sec.  1001.1  Definitions.

* * * * *
    (s) The terms government counsel or DHS counsel, in the context of 
proceedings in which DHS has appeared, mean any officer assigned to 
represent the DHS in any proceeding before an immigration judge or the 
Board of Immigration Appeals.
* * * * *
    (cc) The term case eligible for electronic filing means any case 
that DHS seeks to bring before an immigration court after EOIR has 
formally established an electronic filing system for that court, or any 
case before an immigration court or the Board of Immigration Appeals 
that has an electronic record of proceeding. Any reference to a record 
of proceeding in this chapter shall include an electronic record of 
proceeding.
    (dd) The term filing means the actual receipt of a document by the 
appropriate immigration court or the Board of Immigration Appeals.
    (1) An electronic filing that is accepted by the Board or an 
immigration court will be deemed filed on the date it was submitted. A 
paper filing that is accepted by the Board or an immigration court will 
be deemed filed on the date it was received by the Board or the 
immigration court. A filing that is rejected by the Board or the 
immigration court as an improper filing will not be deemed filed on the 
date it was submitted or received.
    (2) For purposes of paragraph (dd)(1) of this section, an improper 
filing includes, but is not limited to:
    (i) If a fee is required, failure to submit a fee receipt or fee 
waiver request;
    (ii) If a fee is required, the denial of a fee waiver request by 
the Board or an immigration judge, provided that the Board or 
immigration judge, in the adjudicator's discretion and no more than 
once per case, may, before rejecting a filing as improper under this 
paragraph, grant an individual whose fee waiver request is denied up to 
a maximum of 10 days to either pay the required fee or to file a new 
request if the initial request was incomplete or insufficient and may 
toll any applicable deadline by up to a maximum of 10 days accordingly;
    (iii) Failure to include a proof of service upon the opposing 
party;
    (iv) Failure to comply with the language, signature, and format 
requirements;
    (v) Insufficient postage or incorrect courier billing information; 
or
    (vi) Illegibility of the filing.
    (vii) If a document is improperly filed but not rejected, the Board 
or immigration judge retains the authority to take appropriate action.
    (ee) The term service means physically presenting, mailing, or

[[Page 78253]]

electronically providing a document to the appropriate party or 
parties; except that an Order to Show Cause or Notice of Deportation 
Hearing shall be served in person to the alien, or by certified mail to 
the alien or the alien's attorney, and a Notice to Appear shall be 
served to the alien in person, or if personal service is not 
practicable, shall be served by regular mail to the alien or the 
alien's attorney of record.

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
3. 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
4. Amend Sec.  1003.1 by revising paragraph (f) to read as follows:


Sec.  1003.1  Organization, jurisdiction, and powers of the Board of 
Immigration Appeals.

* * * * *
    (f) Service of Board decisions. The decision of the Board shall be 
in writing. The Board shall transmit a copy to DHS and serve a copy 
upon the alien or the alien's representative, as provided in part 1292 
of this chapter.
* * * * *
0
5. Amend Sec.  1003.2 by:
0
a. Revising the introductory text of paragraph (g);
0
b. Revising paragraphs (g)(1) and (g)(2)(i) through (iii); and
0
c. Adding paragraphs (g)(4) through (8).
    The revisions and additions read as follows:


Sec.  1003.2  Reopening or reconsideration before the Board of 
Immigration Appeals.

* * * * *
    (g) Filing procedures. This paragraph applies to the filing of 
documents related to reopening and reconsideration before the Board.
    (1) English language and entry of appearance. A motion and any 
submission made in conjunction with a motion must be in English or 
accompanied by a certified English translation. If the moving party, 
other than DHS, is represented, Form EOIR-27, Notice of Entry of 
Appearance as Attorney or Representative Before the Board, must be 
filed with the motion.
    (2) * * *
    (i) A motion to reopen or motion to reconsider a decision of the 
Board pertaining to proceedings before an immigration judge shall be 
filed directly with the Board. Such motion must be accompanied by a 
payment in a manner authorized by EOIR or fee waiver request in 
satisfaction of the fee requirements of Sec.  1003.8. The record of 
proceeding pertaining to such a motion shall be forwarded to the Board 
upon the request or order of the Board.
    (ii) A motion to reopen or a motion to reconsider a decision of the 
Board pertaining to a matter initially adjudicated by an officer of DHS 
shall be filed with the officer of DHS having administrative control 
over the record of proceeding.
    (iii) If the motion is made by DHS in proceedings in which DHS has 
administrative control over the record of proceedings, the record of 
proceedings in the case and the motion shall be filed directly with the 
Board. If such motion is filed directly with an office of DHS, the 
entire record of proceeding shall be forwarded to the Board by the DHS 
officer promptly upon receipt of the briefs of the parties, or upon 
expiration of the time allowed for the submission of such briefs.
* * * * *
    (4) Filing parties. DHS and all alien attorneys and accredited 
representatives are required to electronically file all documents with 
the Board through EOIR's electronic filing application in all cases 
eligible for electronic filing. Although not required, unrepresented 
respondents, applicants, or petitioners, reputable individuals, and 
accredited officials may electronically file documents with the Board 
through EOIR's electronic filing application in cases eligible for 
electronic filing. An unrepresented individual, reputable individual, 
or accredited official who elects to use EOIR's electronic filing 
application shall be required to register in conformity with Sec.  
1292.1(f) as a condition of using that application. If an unrepresented 
respondent, applicant, or petitioner or reputable individual or 
accredited official opts to use EOIR's electronic filing application 
for a case, the individual must electronically file all documents with 
the Board for that case unless the Board, only upon a motion filed by 
the individual with good cause shown, grants leave to opt out of using 
the electronic filing application. An unrepresented individual, 
reputable individual, or accredited official who has been granted leave 
to opt out of using EOIR's electronic filing application for a case may 
not subsequently opt in again to use that application for the same 
case.
    (5) Filing requirements. Parties must make the originals of all 
filed documents available upon request to the Board or the opposing 
party for review. If EOIR's electronic filing application is 
unavailable due to an unplanned system outage on the last day for 
filing in a specific case, then the filing deadline will be extended to 
the first day that the electronic filing application becomes accessible 
that is not a Saturday, Sunday, or legal holiday. For planned system 
outages, parties must electronically file documents during system 
availability within the applicable filing deadline or paper file 
documents within the applicable filing deadline. EOIR will issue public 
communications for planned system outages ahead of the scheduled 
outage. Any planned system outage announced three or fewer business 
days prior to the start of the outage will be treated as an unplanned 
outage. The Board retains discretion to accept paper filings in all 
cases.
    (6) Classified information. Notwithstanding any other provision of 
this chapter, classified information is never allowed to be 
electronically filed.
    (7) Signatures. All documents filed with the Board that require a 
signature must have an original, handwritten ink signature, an 
encrypted digital signature, or an electronic signature. Electronic 
filings submitted through EOIR's electronic filing application that 
require the user's signature may have a conformed signature. This 
paragraph is subject to the requirements of the application or document 
being submitted.
    (8) Service. The service of filings with the Board depends on 
whether the documents are filed through EOIR's electronic filing 
application or in paper.
    (i) Service of electronic filings. If all parties are using EOIR's 
electronic filing application in a specific case, the parties do not 
need to serve a document that is filed through EOIR's electronic filing 
application on the opposing party. EOIR's electronic filing application 
will effectuate service by providing a notification of all 
electronically filed documents on all parties by email. Upon successful 
upload by one of the parties, EOIR will email a notification to the 
email addresses provided in paragraph (g)(7)(ii) of this section. If 
one or more parties are not filing through EOIR's electronic filing 
application in a specific case, the parties must follow the service 
procedures in paragraph (g)(7)(iii) of this section.
    (ii) Valid Email Address. Use of EOIR's electronic filing 
application

[[Page 78254]]

requires a valid email address for electronic service. The Board will 
use the email address provided through eRegistry for electronic service 
on participating parties. Users must immediately update their eRegistry 
account if their email address changes. Representatives must 
additionally file a new Form EOIR-27 with the Board if their email 
address changes. EOIR will consider service completed when the 
electronic notification is delivered to the last email address on file 
provided by the user.
    (iii) Service of paper filings. If electronic filing is not being 
used in a particular case, the party filing with the Board must serve a 
copy of the filing on the opposing party and include a certificate of 
service showing service on the opposing party with their filing. If the 
moving party is not DHS, service of the motion shall be made upon the 
ICE Office of the Principal Legal Advisor for the field location in 
which the case was completed before the immigration judge.
* * * * *
0
6. Amend Sec.  1003.3 revising paragraphs (a)(2), (a)(3), and (c)(2) 
and adding paragraph (g) to read as follows:


Sec.  1003.3  Notice of appeal.

    (a) * * *
    (2) Appeal from decision of a DHS officer. A party affected by a 
decision of a DHS officer that may be appealed to the Board under this 
chapter shall be given notice of the opportunity to file an appeal. An 
appeal from a decision of a DHS officer shall be taken by filing a 
Notice of Appeal to the Board of Immigration Appeals from a Decision of 
a DHS Officer (Form EOIR-29) directly with the DHS office having 
administrative control over the record of proceeding within 30 days of 
the service of the decision being appealed. An appeal is not properly 
filed until it is received at the appropriate DHS office, together with 
all required documents, and the fee provisions of Sec.  1003.8 are 
satisfied.
    (3) General requirements for all appeals. The appeal must be 
accompanied by a payment in a manner authorized by EOIR or fee waiver 
request in satisfaction of the fee requirements of Sec.  1003.8. If the 
respondent or applicant is represented, a Notice of Entry of Appearance 
as Attorney or Representative Before the Board (Form EOIR-27) must be 
filed with the Notice of Appeal. The appeal and all attachments must be 
in English or accompanied by a certified English translation.
* * * * *
    (c) * * *
    (2) Appeal from decision of a DHS officer. Briefs in support of or 
in opposition to an appeal from a decision of a DHS officer shall be 
filed directly with the DHS office having administrative control over 
the file. The alien and DHS shall be provided 21 days in which to file 
a brief, unless a shorter period is specified by the DHS officer from 
whose decision the appeal is taken, and reply briefs shall be permitted 
only by leave of the Board. Upon written request of the alien, the DHS 
officer from whose decision the appeal is taken or the Board may extend 
the period for filing a brief for good cause shown. The Board may 
authorize the filing of briefs directly with the Board. In its 
discretion, the Board may consider a brief that has been filed out of 
time. All briefs and other documents filed in conjunction with an 
appeal, unless filed by an alien directly with a DHS office, shall 
include proof of service on the opposing party.
* * * * *
    (g) Filing. This paragraph applies to the filing of documents 
related to appeals before the Board.
    (1) Filing parties. DHS and all attorneys and accredited 
representatives are required to electronically file all documents with 
the Board through EOIR's electronic filing application in all cases 
eligible for electronic filing. Although not required, unrepresented 
respondents, applicants, or petitioners, reputable individual, and 
accredited officials may electronically file documents with the Board 
through EOIR's electronic filing application in cases eligible for 
electronic filing. An unrepresented individual, reputable individual, 
or accredited official who elects to use EOIR's electronic filing 
application shall be required to register in conformity with Sec.  
1292.1(f) as a condition of using that application. If an unrepresented 
respondent, applicant, or petitioner, reputable individual, or 
accredited official opts to use EOIR's electronic filing application 
for a case, the individual must electronically file all documents with 
the Board for that case unless the Board, only upon a motion filed by 
the individual with good cause shown, grants leave to opt out of using 
the electronic filing application. An unrepresented individual, 
reputable individual, or accredited official who has been granted leave 
to opt out of using EOIR's electronic filing application for a case may 
not subsequently opt in to use that application for the same case.
    (2) Filing requirements. Parties must make the originals of all 
filed documents available upon request to the Board or to the opposing 
party for review. If EOIR's electronic filing application is 
unavailable due to an unplanned system outage on the last day for 
filing in a specific case, then the filing deadline will be extended to 
the first day that the electronic filing application becomes accessible 
that is not a Saturday, Sunday, or legal holiday. For planned system 
outages, parties must electronically file documents during system 
availability within the applicable filing deadline or paper file 
documents within the applicable filing deadline. EOIR will issue public 
communications for planned system outages ahead of the scheduled 
outage. Any planned system outage announced three or fewer business 
days prior to the start of the outage will be treated as an unplanned 
outage. The Board retains discretion to accept paper filings in all 
cases.
    (3) Classified information. Notwithstanding any other provision of 
this chapter, classified information is never allowed to be 
electronically filed.
    (4) Signatures. All documents filed with the Board that require a 
signature must have an original, handwritten ink signature, an 
encrypted digital signature, or an electronic signature. Electronic 
filings submitted through EOIR's electronic filing application that 
require the user's signature may have a conformed signature. This 
paragraph is subject to the requirements of the application or document 
being submitted.
    (5) Service. The service of filings with the Board depends on 
whether the documents are filed through EOIR's electronic filing 
application or in paper.
    (i) Service of electronic filings. If all parties are using EOIR's 
electronic filing application in a specific case, the parties do not 
need to serve a document that is filed through EOIR's electronic filing 
application on the opposing party. EOIR's electronic filing application 
will effectuate service by providing a notification of all 
electronically filed documents on all parties by email. Upon successful 
upload by one of the parties, EOIR will email a notification to the 
email addresses provided in paragraph (g)(5)(ii) of this section. If 
one or more parties are not filing through EOIR's electronic filing 
application in a specific case, the parties must follow the service 
procedures in paragraph (g)(5)(iii) of this section.
    (ii) Valid Email Address. Use of EOIR's electronic filing 
application requires a valid email address for electronic service. The 
Board will use the email address provided through eRegistry for 
electronic service on participating parties. Users must

[[Page 78255]]

immediately update their eRegistry account if their email address 
changes. Representatives must additionally file a new Form EOIR-27 with 
the Board if their email address changes. EOIR will consider service 
completed when the electronic notification is delivered to the last 
email address on file provided by the user.
    (iii) Service of paper filings. If electronic filing is not being 
used in a particular case, the party filing with the Board must serve a 
copy of the filing on the opposing party and include a certificate of 
service showing service on the opposing party with their filing.
0
7. Amend Sec.  1003.13 by removing the ``Filing'' and ``Service'' 
definitions.
0
8. Amend Sec.  1003.17 by revising 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 
DHS as required by Sec.  1003.32. 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 a 
Form 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 DHS for appearance(s) before DHS.
* * * * *
0
9. Amend Sec.  1003.23 by revising paragraph (b)(1)(ii) to read as 
follows:


Sec.  1003.23  Reopening or reconsideration before the immigration 
court.

* * * * *
    (b) * * *
    (1) * * *
    (ii) Filing. Motions to reopen or reconsider a decision of an 
immigration judge must be filed with the immigration court having 
administrative control over the Record of Proceeding. If necessary 
under Sec.  1003.32, a motion to reopen or a motion to reconsider shall 
include a certificate showing service on the opposing party of the 
motion and all attachments. If the moving party is not DHS, service of 
the motion shall be made upon the ICE Office of the Principal Legal 
Advisor for the field location in which the case was completed. If the 
moving party, other than DHS, is represented, a Form EOIR-28, Notice of 
Appearance as Attorney or Representative Before an Immigration Judge 
must be filed with the motion. If filed in paper, the motion must be 
filed in duplicate with the immigration court, accompanied by a fee 
receipt.
* * * * *
0
10. Revise Sec.  1003.31 to read as follows:


Sec.  1003.31  Filing documents and applications.

    This section applies to the filing of all documents, including 
motions and applications, before the immigration courts.
    (a) Filing parties. DHS and all attorneys and accredited 
representatives are required to electronically file all documents, 
including charging documents, with the immigration courts through 
EOIR's electronic filing application in all cases eligible for 
electronic filing. Although not required, unrepresented respondents or 
applicants, reputable individuals, and accredited officials may 
electronically file documents with the immigration courts through 
EOIR's electronic filing application in cases eligible for electronic 
filing. An unrepresented individual, reputable individual, or 
accredited official who elects to use EOIR's electronic filing 
application shall be required to register in conformity with Sec.  
1292.1(f) as a condition of using that application. If an unrepresented 
respondent or applicant, reputable individual, or accredited official 
opts to use EOIR's electronic filing application for a case, the 
individual must electronically file all documents with the immigration 
court for that case unless an immigration judge, only upon a motion 
filed by the individual with good cause shown, grants leave to opt out 
of using the electronic filing application. An unrepresented 
individual, reputable individual, or accredited official who has been 
granted leave to opt out of using EOIR's electronic filing application 
for a case may not subsequently opt in to use that application for the 
same case.
    (b) Filing requirements. If EOIR's electronic filing application is 
unavailable due to an unplanned system outage on the last day for 
filing in a specific case, then the filing deadline will be extended to 
the first day that the electronic filing application becomes accessible 
that is not a Saturday, Sunday, or legal holiday. For planned system 
outages, parties must electronically file documents during system 
availability within the applicable filing deadline or paper file 
documents within the applicable filing deadline. EOIR will issue public 
communications for planned system outages ahead of the scheduled 
outage. Any planned system outage announced three or fewer business 
days prior to the start of the outage will be treated as an unplanned 
outage. In all other situations in cases eligible for electronic 
filing, an immigration judge may accept paper filings from a party 
otherwise required to file electronically, but only in open court and 
only:
    (i) For rebuttal or impeachment purposes,
    (ii) Upon good cause shown, provided that the filing is otherwise 
admissible and the immigration judge finds that any applicable filing 
deadline should be excused, or
    (iii) When the opposing party does not object to the paper filing.
    (c) Originals. Parties must make the originals of all filed 
documents available upon request to the immigration court or the 
opposing party for review.
    (d) Classified information. Notwithstanding any other provision of 
this chapter, classified information is never allowed to be 
electronically filed.
    (e) Where to file. All documents that are to be considered in a 
proceeding before an immigration judge must be filed with the 
immigration court having administrative control over the Record of 
Proceeding.
    (f) Fees. Except as provided in Sec.  1240.11(f), all documents or 
applications filed with the immigration courts requiring the payment of 
a fee must be accompanied by a fee receipt from DHS or a fee waiver 
application pursuant to Sec.  1103.7(c). Except as provided in Sec.  
1003.8, any fee relating to immigration judge proceedings shall be paid 
to, and accepted by, any DHS office authorized to accept fees for other 
purposes pursuant to Sec.  1103.7(a).
    (g) Filing deadlines. The immigration judge may set and extend time 
limits for the filing of applications and related documents and 
responses thereto, if any. If an application or document is not filed 
within the time set by the immigration judge, the opportunity to file 
that application or document shall be deemed waived.
    (h) Filing under seal. DHS may file documents under seal by 
including a cover sheet identifying the contents of the submission as 
containing information which is being filed under seal. Documents filed 
under seal shall only be examined by persons with authorized access to 
the administrative record.
    (i) Signatures. All documents filed with the immigration courts 
that require

[[Page 78256]]

a signature must have an original, handwritten ink signature, an 
encrypted digital signature, or an electronic signature. Electronic 
filings submitted through EOIR's electronic filing application that 
require the user's signature may have a conformed signature. This 
paragraph is subject to the requirements of the application or document 
being submitted.
0
11. Revise Sec.  1003.32 to read as follows:


Sec.  1003.32  Service and size of documents.

    The service of filings with the immigration courts depends on 
whether the documents are filed through EOIR's electronic filing 
application or in paper.
    (a) Service of electronic filings. If all parties are using EOIR's 
electronic filing application in a specific case, the parties do not 
need to serve a document that is filed through EOIR's electronic filing 
application on the opposing party. If all parties are using EOIR's 
electronic filing application in a specific case, EOIR's electronic 
filing application will effectuate service by providing a notification 
of all electronically filed documents on all parties. Upon successful 
upload by one of the parties, EOIR will email a notification to the 
email addresses provided in paragraph (b) of this section. If one or 
more parties are not filing through EOIR's electronic filing 
application in a specific case, the parties must follow the service 
procedures in paragraph (c) of this section.
    (b) Valid email address. Use of EOIR's electronic filing 
application requires a valid email address for electronic service. The 
immigration courts will use the email address provided through 
eRegistry for electronic service on participating parties. Users must 
immediately update their eRegistry account if their email address 
changes. Representatives must additionally file a new Form EOIR-28 with 
the immigration court if their email address changes. EOIR will 
consider service completed when the electronic notification is 
delivered to the last email address on file provided by the user.
    (c) Service of paper filings. If electronic filing is not being 
used in a particular case, the party filing with the immigration court 
must serve a copy of the filing on the opposing party and include a 
certificate of service showing service on the opposing party with their 
filing. The immigration judge will not consider any documents or 
applications that do not contain a certificate of service unless 
service is made on the record during a hearing.
    (d) Size and format of documents. Unless otherwise permitted by the 
immigration judge, all written material presented to immigration judges 
including offers of evidence, correspondence, briefs, memoranda, or 
other documents must be submitted on 8\1/2\'' x 11'' size pages, 
whether filed electronically or in paper. The immigration judge may 
require that exhibits and other written material presented be indexed, 
paginated, and that a table of contents be provided.
0
12. Amend Sec.  1003.37 by revising paragraph (a) to read as follows:


Sec.  1003.37  Decisions.

    (a) A decision of the immigration judge may be rendered orally or 
in writing. If the decision is oral, it shall be stated by the 
immigration judge in the presence of the parties and a memorandum 
summarizing the oral decision shall be served on the parties. If the 
decision is in writing, it shall be served on the parties by personal 
service, mail, or electronic notification.
* * * * *
0
13. Amend Sec.  1003.38 by revising paragraph (b) to read as follows:


Sec.  1003.38  Appeals.

* * * * *
    (b) The Notice of Appeal from a Decision of an Immigration Judge 
(Form EOIR-26) shall be filed directly with the Board of Immigration 
Appeals within 30 calendar days after the stating of an immigration 
judge's oral decision or the mailing or electronic notification of an 
immigration judge's written decision. If the final date for filing 
falls on a Saturday, Sunday, or legal holiday, this appeal time shall 
be extended to the next business day. A Notice of Appeal (Form EOIR-26) 
may not be filed by any party who has waived appeal.
* * * * *
0
14. Amend Sec.  1003.63 by revising the last sentence in paragraphs 
(f)(1) and (2), to read as follows:


Sec.  1003.63  Applications.

* * * * *
    (f) * * *
    (1) * * * A comment or recommendation not sent to the Director 
electronically must include proof of service on the applicant.
    (2) * * * All responses must be filed with the Director and include 
proof of service of a copy of such response on the commenting party.
0
15. Amend Sec.  1003.64 by revising the last sentence in paragraph (b) 
to read as follows:


Sec.  1003.64  Approval and denial of applications.

* * * * *
    (b) * * * The written notice shall be served at the address 
provided on the application unless the applicant subsequently provides 
a change of address pursuant to Sec.  1003.66, or shall be transmitted 
to the applicant electronically.
* * * * *
0
16. Amend Sec.  1003.65 by revising the first sentence in paragraph 
(d)(3) to read as follows:


Sec.  1003.65  Removal of a provider from the List.

* * * * *
    (d) * * *
    (3) Response. The provider may submit a written answer within 30 
days from the date the notice is served or is sent to the provider 
electronically. * * *
* * * * *
0
17. Amend Sec.  1003.106 by revising the second sentence in paragraph 
(a)(2)(ii) and the seventh sentence in paragraph (b) to read as 
follows:


Sec.  1003.106  Right to be heard and disposition.

    (a) * * *
    (2) * * *
    (ii) * * * When designating the time and place of a hearing, the 
adjudicating official shall provide for the service of a notice of 
hearing on the practitioner or the authorized officer of the recognized 
organization and the counsel for the government.
* * * * *
    (b) * * * The adjudicating official shall provide for service of a 
written decision or memorandum summarizing an oral decision on the 
practitioner or, in cases involving a recognized organization, on the 
authorized officer of the organization and on the counsel for the 
government. * * *
* * * * *

PART 1208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
18. The authority citation for part 1208 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Pub. L. 110-229; Pub. L. 115-218.
0
19. Amend Sec.  1208.4 by revising the fifth sentence of paragraph 
(a)(2)(ii) to read as follows:


Sec.  1208.4  Filing the application.

* * * * *
    (a) * * *
    (2) * * *
    (ii) * * * For cases before the immigration court, the application 
is considered to have been filed on the date it is received by the 
immigration court. * * *
* * * * *

[[Page 78257]]

PART 1214--REVIEW OF NONIMMIGRANT CLASSES

0
20. The authority citation for part 1214 continues to read as follows:

    Authority:  8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110 
Stat. 3009-708; section 141 of the Compacts of Free Association with 
the Federated States of Micronesia and the Republic of the Marshall 
Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and 
1931 note, respectively; 8 CFR part 2.


Sec.  1214.2  [Amended]

0
21. Amend Sec.  1214.2 (a) by:
0
a. Removing the words ``the Service'' and adding, in their place, the 
word ``DHS'';
0
b. Removing the words ``Service counsel'' and adding, in their place, 
the words ``DHS counsel''; and
0
c. Removing the words ``Service custody'' and adding, in their place, 
the words ``DHS custody''.

PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE 
UNITED STATES

0
22. The authority citation for part 1240 continues to read as follows:

    Authority:  8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226, 
1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202 
and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 
105-277 (112 Stat. 2681).


Sec.  1240.2  [Amended]

0
23. Amend Sec.  1240.2 by:
0
a. Removing the words ``the Service'' and adding, in their place, the 
word ``DHS'';
0
b. Removing the words ``Service counsel'' and adding, in their place, 
the words ``DHS counsel''; and
0
c. Removing the words ``Service attorney'' and adding, in their place, 
the words ``DHS counsel''.


Sec.  1240.10  [Amended]

0
24. Amend Sec.  1240.10 by:
0
a. Removing the words ``the Service'' and adding, in their place, the 
word ``DHS''; and
0
b. Removing the words ``an Service counsel'' and adding, in their 
place, the words ``DHS counsel''.


Sec.  1240.11  [Amended]

0
25. Amend Sec.  1240.11 by:
0
a. Removing the words ``the Service'' and adding, in their place, the 
word ``DHS''; and
0
b. Removing the words ``Service counsel'' and adding, in their place, 
the words ``DHS counsel''.


Sec.  1240.13  [Amended]

0
26. Amend Sec.  1240.13 by removing the words ``Service counsel'' and 
adding, in their place, the words ``DHS counsel''.


Sec.  1240.26   [Amended]

0
27. Amend Sec.  1240.26 by:
0
a. Removing the words ``the Service'' and adding, in their place, the 
word ``DHS''; and
0
b. Removing the words ``Service counsel'' and adding, in their place, 
the words ``DHS counsel''.


Sec.  1240.32  [Amended]

0
28. Amend Sec.  1240.32 by:
0
a. Removing the words ``the Service'' and adding, in their place, the 
word ``DHS''; and
0
b. Removing the words ``Service counsel'' and adding, in their place, 
the words ``DHS counsel''.


Sec.  1240.33  [Amended]

0
29. Amend Sec.  1240.33 by removing the words ``Service counsel'' and 
adding, in their place, the words ``DHS counsel''.


Sec.  1240.48  [Amended]

0
30. Amend Sec.  1240.48 by:
0
a. Removing the words ``the Service'' and adding, in their place, the 
word ``DHS''; and
0
b. Removing the words ``Service counsel'' and adding, in their place, 
the words ``DHS counsel''.


Sec.  1240.49  [Amended]

0
31. Amend Sec.  1240.49 by:
0
a. Removing the words ``the Service'' and adding, in their place, the 
word ``DHS''; and
0
b. Removing the words ``Service counsel'' and adding, in their place, 
the words ``DHS counsel''.


Sec.  1240.51  [Amended]

0
32. Amend Sec.  1240.51 by removing the words ``Service counsel'' and 
adding, in their place, the words ``DHS counsel''.
0
33. Amend Sec.  1240.53 by revising paragraph (a) to read as follows:


Sec.  1240.53  Appeals.

    (a) Pursuant to 8 CFR part 1003, an appeal shall lie from a 
decision of an immigration judge to the Board, except that no appeal 
shall lie from an order of deportation entered in absentia. The 
procedures regarding the filing of a Form EOIR-26, Notice of Appeal, 
fees, and briefs are set forth in Sec. Sec.  1003.3, 1003.31, and 
1003.38 of this chapter. An appeal shall be filed within 30 calendar 
days after the mailing or electronic notification of a written 
decision, the stating of an oral decision, or the service of a summary 
decision. The filing date is defined as the date of receipt of the 
Notice of Appeal by the Board. The reasons for the appeal shall be 
stated in the Form EOIR-26, Notice of Appeal, in accordance with the 
provisions of Sec.  1003.3(b) of this chapter. Failure to do so may 
constitute a ground for dismissal of the appeal by the Board pursuant 
to Sec.  1003.1(d)(2) of this chapter.
* * * * *

PART 1245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR 
PERMANENT RESIDENCE

0
34. The authority citation for part 1245 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1255; section 202, Pub. L. 
105-100, 111 Stat. 2160, 2193; section 902, Pub. L. 105-277, 112 
Stat. 2681; Title VII of Pub. L. 110-229.

0
35. Amend Sec.  1245.21 by:
0
a. Removing the words ``the Service'' and adding, in their place, the 
word ``DHS'';
0
b. Removing the words ``the Service's'' and adding, in their place, the 
word ``DHS's''; and
0
c. Removing the words ``Service counsel'' and adding, in their place, 
the words ``DHS counsel''.

PART 1246--RECISSION OF ADJUSTMENT OF STATUS

0
36. The authority citation for part 1246 continues to read as follows:

    Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259; 8 CFR part 2.


Sec.  1246.5  [Amended]

0
37. Amend Sec.  1246.5 by removing the words ``Service counsel'' and 
adding, in their place, the words ``DHS counsel''.

PART 1292--REPRESENTATION AND APPEARANCES

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

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

0
39. Amend Sec.  1292.1 by revising paragraphs (a)(2)(ii) through (iv), 
and adding paragraph (a)(2)(v) to read as follows:


Sec.  1292.1  Representation of others.

    (a) * * *
    (2) * * *
    (ii) In the case of a law student, he or she has filed a statement 
that he or she is participating, under the direct supervision of an 
EOIR-registered licensed attorney or accredited representative, in a 
legal aid program or clinic conducted by a law school or non-profit 
organization, and that he or she is appearing without direct or 
indirect remuneration from the alien he or she represents;

[[Page 78258]]

    (iii) In the case of a law graduate, he or she has filed a 
statement that he or she is appearing under the supervision of a 
licensed attorney or accredited representative and that he or she is 
appearing without direct or indirect remuneration from the alien he or 
she represents;
    (iv) An attorney or accredited representative physically 
accompanies the law student or law graduate who is appearing. The 
accompanying attorney or accredited representative must be authorized 
to practice before EOIR and be prepared to proceed with the case at all 
times; and
    (v) All filings by law students and law graduates are made through 
an EOIR-registered attorney or accredited representative.
* * * * *

James R. McHenry,
Director, Executive Office for Immigration Review, Department of 
Justice.
[FR Doc. 2020-26115 Filed 12-3-20; 8:45 am]
BILLING CODE 4410-30-P