Demystifying the “Limited Appearance” in Removal Proceedings: An overview of EOIR-60 and EOIR-61

Forms EOIR-60 and EOIR-61 allow practitioners to make a limited appearance on behalf of pro se respondents for the purpose of assisting with preparing documents for the immigration court or Board of Immigration Appeals (BIA). Each of these bolded terms is elaborated on below and is key for understanding the limitations of these new forms. As indicated by the form names, EOIR-60 should be used in cases before the BIA, and EOIR-61 should be used in cases before the immigration court. The forms come from the new EOIR rule in 87 F.R. 56247 that became effective November 14, 2022 and is entitled “Professional Conduct for Practitioners-Rules and Procedures, and Representation and Appearances.”

Pro se respondents: Forms EOIR-60 and EOIR-61 can only be used to assist pro se respondents. A respondent is considered pro se only if there is not a “practitioner of record” in their case, meaning someone has not entered an appearance using an EOIR-27 or EOIR-28. If there is a practitioner of record, that person will need to withdraw before someone else can enter a limited appearance. It will depend on the facts of the case whether withdrawal of the practitioner of record is the best route or not.  

Moreover, the forms are only available for removal proceedings. At this time, there is not an equivalent form for USCIS filings. 

It is also important to keep in mind that the respondent is still considered pro se even if they file a document with an EOIR-60 and EOIR-61. An EOIR-60 or EOIR-61 offers a different purpose and has a different scope than entering an appearance as a practitioner of record in a case. The new forms are not a substitute for filling an EOIR-27 or EOIR-28 to enter an appearance in a case.  

Practitioners: Only “practitioners” can use an EOIR-60 or EOIR-61. Similarly, only “practitioners” are required to submit an EOIR-60 or EOIR-61 if they provide document assistance to a pro se individual. A “practitioner” includes anyone authorized to provide representation, such as non-government attorneys, law students, law graduates, reputable individuals, accredited representatives, and accredited officials. See 8 C.F.R §§ 1003.101(b), 1001.1(f), 1001.1(ff), 1001.1(j); 8 C.F.R § 1292.1. Keep in mind that these forms are mandatory. Anyone considered a practitioner must complete an EOIR-60 or EOIR-61 if they provide document assistance to a pro se respondent. And as explained below, document assistance is defined broadly. Practitioners who provide document assistance to a pro se individual and fail to complete a form EOIR-60 or EOIR-61 can be subject to discipline under 8 C.F.R. § 1003.102(t). 

Non-practitioners: A non-practitioner who assists a pro se respondent with preparing documents, such as a paralegal who helps with completing a change of address form, need not complete an EOIR-60 or EOIR-61. Non-practitioners still cannot provide legal advice and generally remain limited to filling in blank spaces on printed forms with information provided by the applicant or petitioner. 8 C.F.R. § 1001.1(k). A non-practitioner who helps with filling in a form may also still be required to identify themselves as someone who assisted with the document, especially if the form they assisted with contains a preparer section. 

Forms EOIR-60 and EOIR-61 are designed for assisting with documents to be filed with the immigration court or BIA. They cover more administrative documents like a change of address form as well as more substantive documents like a brief on the merits of a case or an application for relief. But the forms do not allow practitioners to appear at court hearings.  

Document assistance: Assistance with preparation of documents includes drafting, completing, or filling in blank spaces on any document to be filed with the immigration court or BIA. See 8 C.F.R. §§ 1003.17(b), 1003.38(g)(2). Whether or not the practitioner uses professional judgment or provides legal advice does not matter for determining if an EOIR-60 or EOIR-61 is required. However, merely translating a document for a pro se respondent is outside the scope of the rules and will not require the practitioner to complete an EOIR-60 or EOIR-61. See EOIR, Frequently Asked Questions, at 5.  

Because the rules only require a practitioner to complete an EOIR-60 or EOIR-61, an organization that wants to avoid entering a limited appearance for administrative filings may prefer to have a paralegal or other non-practitioner assist with completing the forms so long as it does not require legal advice. But note that an EOIR-60 or EOIR-61 would still be required if a practitioner then reviews the legal assistant’s work on these forms. See EOIR, Frequently Asked Questions, at 7. 

The new rules allowing a practitioner to provide limited legal assistance for pro se respondents stem from NWIRP and Yuk Man Maggie Cheng v. Sessions, III, et al., 2:17-cv-00716-RAJ (W.D. Wash.). The Northwest Immigrant Rights Project (NWIRP), which was the organization involved in this litigation, provides additional information about the litigation and settlement process in its primer on the new rules. 

This section provides some general tips for completing the forms and should not be used as a substitute for reading the directions on the forms and specific guidance from EOIR. 

Ethical Obligations 

Attorneys or practitioners must keep their ethical obligations in mind when providing limited document assistance. The instructions for Forms EOIR-60 and EOIR-61 specify that they must notify the respondent about the scope of their limited appearance and that by entering a limited appearance they are agreeing to comply with the EOIR Rules of Professional Conduct in 8 C.F.R. § 1003.102. In addition, the signature block on Forms EOIR-60 and EOIR-61 makes clear that by signing an attorney or practitioner represents to the court that: 

• They have explained the limited nature of their assistance to the respondent, “including an instruction that I am not agreeing to serve as the party’s attorney or representative in proceedings before EOIR.”  

• They “read and understand the statements provided on the reverse side of this form that set forth in the regulations the conditions governing limited appearances and representations before EOIR,” and they consent to publication of their name and any findings of misconduct by EOIR should they become subject to any public discipline by EOIR pursuant to the rules and procedures at 8 C.F.R. 1003.101 et seq. 

These requirements emphasize the importance of explaining the scope of the limited appearance to the respondent and ensure that practitioners remain bound by the rules of professional conduct when providing limited document assistance.  

The new forms have the potential to allow practitioners to assist more respondents, as pro se respondents may need help with some basic forms that are essential to their case or may have a better chance of success on the merits if a practitioner helps with completing their application for relief. But there are some potential challenges that may arise when providing limited document assistance that should be considered when determining how and when a practitioner will utilize EOIR-60 or EOIR-61. Because of the nature of a limited appearance, the practitioner will likely not be able to control what happens to the document after it gets filed or whether issues later arise in the case related to information in the document. As in all cases, it is possible that a respondent could change their story and claim that things did not happen the way they were initially presented in an application for relief.  

The practitioner will also need to rely on the respondent because they will not have access to the respondent’s record of proceeding. See EOIR, Frequently Asked Questions, at 14-15. It is, therefore, important to be cautious when helping with documents to ensure that the practitioner is working with the best information available from the respondent. This assessment and judgment call will vary greatly depending on the type of document that is being worked on and other factors involved in the case. The practitioner should consider documenting their conversations with the respondent(s) and keeping their notes and drafts of the document(s) in the case file as they may be helpful if any issues later arise in the immigration proceedings. 

Additionally, organizations could consider having respondents sign a short document similar to a representation agreement that defines the terms of the practitioner’s relationship with the respondent and has the respondent acknowledge that they understand the limited nature of what the practitioner is offering and that the practitioner is only entering a limited appearance for a specific purpose. This document could also be stored in a case file to have if needed later. 

Communicating with the Pro Se Respondent 

One of the biggest challenges with using Forms EOIR-60 or EOIR-61 is likely going to be explaining to pro se respondents what it means to enter a limited appearance. It is important for the respondents to understand the limited role the practitioner is playing in their case and for the practitioner to set clear boundaries and expectations. An interpreter may also be needed to help communicate with the respondent.  

Having this discussion can be especially difficult when working with immigrant children. CILA’s resource “Tips For Working With Migrant Children And Trauma-Informed Lawyering” (Feb. 2023) also offers some advice for communicating with children. If you need the password to access this resource, email us at cila@abacila.org. While a full overview of how to communicate with immigrant children is beyond the scope of this resource, here are some additional tips to keep in mind. 

• Avoid using technical language or legal terms. For more complicated topics, consider using a simple analogy to make the issue more accessible. 
• Keep conversations short because children tend to have shorter attention spans. Multiple meetings may be necessary especially for more complicated documents. 

• Set boundaries early by having the conversation about entering a limited appearance at the beginning of the relationship. If the assistance spans a longer period while documents are being prepared, continuously remind the individual of the practitioner’s limited role in the case. 
• Specifically identify what is and is not included in the scope of the limited appearance. 
• Check in regularly with the child to help keep them engaged and confirm that they are understanding the information provided. 
• Keep in mind that an interpreter may be needed to explain the issues to the child, such as when working with an Indigenous youth. CILA has compiled “Resources for Working with Indigenous Youth,” which is available online on CILA’s Additional Resources webpage and includes several resources with information on language access and support. Please email cila@abacila.org for the password to access this site. 

If an organization intends to regularly enter limited appearances in cases, it may be helpful to create a short handout with information about what it means and to provide this written handout/document to individuals when going over the role verbally. This may help guide the conversation, and it may also help reiterate the information to an individual who might have a challenging time absorbing the information if it is delivered while in court, for instance. Ensure that the handout is clear, accurate, in simple terms, and ideally translated in the respondent’s best language. There could also be a section at the end of the form for the respondent to sign and acknowledge that they understand the scope of the limited appearance. 

What to Include 

Key information: Forms EOIR-60 and EOIR-61 generally ask for (1) background information about the pro se respondent, (2) background information about the practitioner, and (3) information about the document or set of documents that the practitioner assisted with preparing. The practitioner should check the box indicating what document(s) they assisted with preparing. It is recommended to be as specific as possible in identifying each document they assisted with and to utilize the “Additional Information” section at the end if more space is needed. If there are multiple filings, the same form can be used for more than one document so long as the documents are being filed together and by the same pro respondent. A separate form is required for each pro se respondent. In addition, any subsequent filings for the same pro se respondent will require a new EOIR-60 or EOIR-61.  

Signatures: The EOIR-60 or EOIR-61 is signed by the practitioner, who is obligated to comply with the requirements described above. The proof of service should be completed and signed by whoever is handling service, which as explained below may be the respondent. In addition to completing the EOIR-60 or EOIR-61, the practitioner should identify themselves by name and signature on the documents that they assisted with preparing. See EOIR, Frequently Asked Questions, at 12. 

Filing and Service 

Forms EOIR-60 and EOIR-61 must be filed with the documents that the practitioner assisted with preparing. All the documents must also be served on the Department of Homeland Security (DHS), and the EOIR-60 and EOIR-61 include a proof of service section. But the practitioner is not obligated to do the actual filing and service—that responsibility ultimately lies with the pro se respondent. Nevertheless, the practitioner should discuss the filing and service process with the respondent. Also, if possible, helping the respondent file and serve the document may be the best way to ensure that the documents are received by the court. Because generally pro se respondents do not have access to electronic filing, the documents will need to be physically filed with the court in accordance with the Immigration Court Practice Manual. 

A friend of court is a neutral party who assists the court without advocating for either side. Friends of court have been used to help ensure unaccompanied children receive the legal services they are entitled to under federal law. Please refer to CILA’s resource, “Ethical Considerations for Appearing as Friend of Court” (June 30, 2022) for more information about the friend of court process and some guidelines for what do when appearing as friend of court.  

When acting as friend of court, a practitioner may be asked to assist a respondent with filling in administrative forms. The question then arises whether the friend of court must complete an EOIR-60 or EOIR-61 because that type of document assistance would seemingly be covered by the rules. EOIR offers two somewhat conflicting statements on this issue in its Frequently Asked Questions. 

First, EOIR makes clear that a friend of court does not need to complete Forms EOIR-60 or EOIR-61. Specifically, EOIR states that the rule “does not affect the ability of a person to appear as a ‘Friend of the Court’ or, amicus curiae, in immigration proceedings because amicus curiae appear as aid to the court, and not as a practitioner.” See EOIR, Frequently Asked Questions, at 6. In this explanation, EOIR specifically references the EOIR Director’s Memorandum 22-06 on “Friend of the Court,” which was issued in May 2022. EOIR appears to be creating a carve out for friends of court by treating them as an aid of the court instead of a practitioner. This means that an EOIR-60 or EOIR-61 should not be required when the judge clearly directs the friend of court to help the pro se respondent with completing a document. 

Second, EOIR further clarifies that an attorney acting as a friend of court who subsequently provides document assistance to a pro se respondent in the same matter must fill out an EOIR-60 or EOIR-61. Thus, an EOIR-60 or EOIR-61 is required when a practitioner chooses to later assist a pro se respondent after they are done serving as friend of court to help with documents.  

But EOIR does not clarify when exactly the attorney shifts from acting as a friend of court who falls outside the rules to “subsequently” providing assistance. For instance, how do the rules apply if an attorney is still in the courthouse and learns about an administrative issue shortly after the hearing ends? Perhaps in that circumstance consulting with the immigration judge before providing any assistance would help ensure that the attorney continues to act as an aid to the court who does not need to complete the additional forms. But it is difficult to predict how these more nuanced situations will play out. Because the rules generally require strict compliance for completing an EOIR-60 or EOIR-61 whenever a practitioner provides document assistance, the safest option may be to bring copies of the forms even when acting as friend of court and complete them if there is any ambiguity about whether the attorney is acting as an “aid to the court, and not as a practitioner.” Since these forms and issues are relatively new, more information will likely become known over time, and it is also possible that treatment of the issues will vary depending on the court and judge. 

CILA encourages anyone interested in this topic to review these additional resources about Forms EOIR-60 or EOIR-61: 

• EOIR’s “Frequently Asked Questions” (Nov. 2022) 
• Northwest Immigrant Rights Project, “Limited Legal Assistance in Removal Proceedings: A Primer on EOIR Forms 60 & 61” (Dec. 12, 2022) 

This legal update does not constitute legal advice and is for the purpose of highlighting key information and considerations about entering a limited appearance in removal proceedings. For case specific technical advice, please reach out to CILA via our website, https://cilacademy.org/request-assistance/. Moreover, since there are ethical issues involved in consideration of when and how to use these forms and to enter a limited appearance, keep in mind that it might be prudent or necessary to reach out to your state bar’s ethics line. For example, in Texas, the State Bar of Texas Ethics Hotline for Lawyers can be reached at: 1-800-532-3947.