Executive Office for Immigration Review Electronic Case Access and Filing, 78240-78258 [2020-26115]
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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:
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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
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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
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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.
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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.
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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).
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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.
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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.
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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.
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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
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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
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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.
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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.
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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.
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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
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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.
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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’’).
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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/.
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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.
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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
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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
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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,
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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).
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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).
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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
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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.
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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.
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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
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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.
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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.
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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.
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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.
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2. Costs and Savings Related to Rules
Regarding Law Student and Law
Graduate Filings
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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.
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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
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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
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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) * * *
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(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
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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
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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) * * *
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(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
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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
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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
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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
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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
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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
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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
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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. * * *
*
*
*
*
*
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§ 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’’.
■
■
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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
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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;
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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:
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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
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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.
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]]>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]
========================================================================
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]]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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).
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\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.
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\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.
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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\
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\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.
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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.
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\12\ Any system outage announced three or fewer business days
prior to the start of the outage will be treated as an unplanned
outage.
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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
