CILA Analysis on Proposed Regulations: Professional Conduct for Practitioners

On September 30, 2020 the Executive Office of Immigration Review published yet another round of rulemaking. CILA recently posted a legal update about the proposed changes to the BIA and related appeals regulations. This time the notice of proposed rulemaking is regarding professional conduct for practitioners. The ABA will be submitting comments to these proposed rules. These proposed rules are a direct result of the settlement agreement reached in Northwest Immigrant Rights Project et al v. Sessions, III et al. NWIRP filed this lawsuit in 2017 in response to a “cease and desist” letter from EOIR, telling NWIRP to stop providing legal assistance to people facing deportation unless they had submitted a formal notice of appearance in each case. You can follow the background of the case here.

In July 2017, a federal court judge issued a preliminary injunction that allowed NWIRP and other legal service providers to continue giving assistance to immigrants who are in removal proceedings without representation, or pro se. Litigation continued and in April 2019 the parties reached a settlement agreement. The agreement required EOIR to propose changes to the regulations regarding the procedures for representation and appearances in immigration court, via a notice of proposed rulemaking. The agreement, and accompanying stay, which went into effect on April 18, 2019, gave the government 9 months to issue the notice of proposed rulemaking, with some provisions for extension. By joint motion, the parties agreed to several extensions until September 29, 2020. The rules were published in the Federal Register on the following day.

The proposed rules not only address the subject of the lawsuit, but also have a broad impact on legal orientation providers and immigrants themselves. The majority of the proposed changes are to 8 CFR 1000.1, Definitions, and 8 CFR 1003, Appearances. Below is a brief overview of the most important changes followed by a discussion on what the changes mean for unaccompanied children.

Arguably the most important change in the rules is the definition of “practice,” as it applies to immigration court proceedings, and the definition of “preparation.” There are significant proposed changes to potential sanctions on practitioners, which will be discussed later. 8 CFR 1001.1(i) would be changed to read, at the beginning: “The term practice means the act or acts of giving of legal advice or exercise of legal judgment on any matter or potential matter before or with EOIR…” The phrase “legal judgment” is not defined anywhere in the regulations and could encompass a broad number of things. The rule then goes on to indicate that combining legal judgement with “[a]ssisting in any matter before or potentially before EOIR through the drafting, writing, filing or completion of any pleading, brief, motion, form, application, or other document that is submitted to EOIR, on behalf of another person or client” indicates practice.

Preparation, on the other hand is defined at the proposed 8 CFR 1001.1(k) as follows: “the act or acts consisting solely of clerical assistance in the completion of forms, applications, or documents that are to be filed with or submitted to DHS, or any immigration judge or the Board, where such acts do not include the provision of legal advice or exercise of legal judgment.” In short, if someone does anything other than acting as a scribe for an immigrant in removal proceedings, you are practicing in front of the immigration court.

The distinction between these two words is important because under the proposed 8 CFR 1003.17(d), if you are an attorney or DOJ accredited representative, you will be required to fill out an EOIR-28 form disclosing that you have “practiced.” One of the things that I find quite problematic about the proposed rules as they are written and the accompanying explanation in the Federal Register, is that they refer to a revised EOIR-28 form, which has not yet been published. Thus, any practitioner who wants to accurately prepare themselves or comment on the rules cannot see what they will be required to fill out, so they do not know what information will be asked of them and how.

In addition, if you are an attorney or DOJ accredited representative, the proposed rule also requires you to fill out the revised EOIR-28 when you prepare a document for a pro se immigrant – transfer on to paper the exact information the person gives to you to answer the question, as a scribe. In the proposed 8 CFR 1003.17(e), EOIR indicates that you will not be required to withdraw your EOIR-28 after that one instance of practice or preparation. In fact, it seems to say that for each form, motion, brief, or application you assist with, whether practicing or preparing, you have to file an EOIR-28.

The proposed regulations discussed above, when combined, create several problems for practitioners and legal service providers representing unaccompanied children.

  1. Given the lack of definition for “legal judgement,” it is possible that when an advocate is giving a Know Your Rights (KYR) presentation, explaining an immigrant child’s rights and the types of relief they may be eligible for, they may be exercising legal judgment. Certainly, if you are helping a child do a motion to change venue, that potentially constitute legal judgement, depending on how much information the client has in the first place. I can think of several other similar scenarios where legal judgement issues could arise. The definitions may also restrict the ability of legal advocates who are not licensed to practice immigration law to conduct the KYRs.
  2. The role of pro bono attorneys and other volunteers could be blurred under these rules. When there are too many children in shelter for a legal service provider to represent, or they are prohibited from taking released representation, one of the only ways to assist these kids in shelter is to do pro se workshops or individual pro se screenings or preparation. Not only would any pro bono attorneys that assist at the workshop have to sign as preparer on any forms, they would now have to file an EOIR-28 indicating how they helped this child. This would create more paperwork at workshops and could create concern for the pro bono attorneys as to the extent of their commitment. Which leads into…
  3. Not only does a pro bono practitioner have to fill out an EOIR-28, EOIR, in its discussion of the proposed rule, contradicts itself as to whether an attorney or DOJ representative filling out an EOIR-28 must provide their EOIR number, thereby potentially requiring them to be registered with EOIR’s registry.
  4. If published, this rule will create an administrative nightmare, both for EOIR and practitioners, in determining who is an attorney on a case and who is not. It will mean there are a lot of EOIR-28s floating around, some for full representation, some for practice or preparation.  While the rule doesn’t seem to require practitioners to stay on the case, attorneys and DOJ representatives already have problems getting EOIR to take us off cases even when motions to withdraw or substitute have been granted by an Immigration Judge.

One other problem not even mentioned yet is that the proposed 8 CFR 1003.102(t) allows for sanctions to be levelled on a practitioner for failing to submit an EOIR-28 for practice or preparation one time.

There is one last thing to mention about the proposed changes, because it seems to be aimed directly at the legal service providers working with unaccompanied minors. Proposed 8 CFR 1003.17(b) says: “No individual may engage in practice as defined in 8 CFR 1001.1(i), including exercising or waiving a respondent’s rights, or otherwise advocating in a legal capacity on behalf of a respondent in open court without filing Form EOIR–28 noticing that individual’s entry of appearance as a respondent’s legal representative.” This provision incorporates EOIR’s OPPM 20-05, Legal Advocacy by Non-Representatives in Immigration Court, released earlier this year, severely curtailing the role of Friend of Court in immigration proceedings. You can see CILA’s Ethics Advisory: Acting as Friend of Court  here. However,  this rule would authorize EOIR to sanction the attorney who acts in violation of these rules. There are also serious questions as to what it would mean if an advocate from a legal service provider prepared a client to ask for a continuance. The rules certainly prohibit them from helping prepare a written motion without filing an EOIR-28.

For the reasons mentioned above, and the overall lack of clarity and potential for harm to clients and practitioners, I would encourage you to comment on these proposed EOIR regulations. The more comments that are posted the longer it will take to publish the final rule, as each comment must be reviewed. There are only a few days left, comments must be received by 11:59pm on Friday October 30, 2020, so don’t delay!