[Federal Register Volume 73, Number 147 (Wednesday, July 30, 2008)]
[Proposed Rules]
[Pages 44178-44189]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17340]
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DEPARTMENT OF JUSTICE
8 CFR Parts 1001, 1003, 1292
[Docket No. EOIR 160P; A.G. Order No. 2980-2008]
RIN 1125-AA59
Professional Conduct for Practitioners--Rules and Procedures, and
Representation and Appearances
AGENCY: Executive Office for Immigration Review, Justice.
ACTION: Proposed rule with request for comments.
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SUMMARY: This rule proposes to change the rules and procedures
concerning the standards of representation and professional conduct for
attorneys and other practitioners who appear before the Executive
Office for Immigration Review (EOIR), which includes the immigration
judges and the Board of Immigration Appeals (Board), and to clarify who
is authorized to represent and appear on behalf of individuals in
proceedings before the Board and the immigration judges. Current
regulations set forth who may represent individuals in proceedings
before EOIR and also set forth the rules and procedures for imposing
disciplinary sanctions against attorneys or other practitioners who
engage in criminal, unethical, frivolous, or unprofessional conduct
before EOIR. The proposed revisions would increase the number of
grounds for discipline and improve the clarity and uniformity of the
existing rules while incorporating miscellaneous technical and
procedural changes. The changes proposed herein are based upon the
Attorney General's recent initiative for improving the adjudicatory
processes for the immigration judges and the Board, as well as EOIR's
operational experience in administering the disciplinary program since
the current process was established in 2000.
DATES: Written comments must be submitted on or before September 29,
2008.
ADDRESSES: Please submit written comments to John N. Blum, Acting
General Counsel, Executive Office for Immigration Review, 5107 Leesburg
Pike, Suite 2600, Falls Church, Virginia, 22041. To ensure proper
handling, please reference RIN No. 1125-AA59 or EOIR docket number 160P
on your correspondence. You may view an electronic version and provide
comments via the Internet by using the www.regulations.gov comment form
for this regulation. When submitting comments electronically, you must
include RIN No. 1125-AA59 in the subject box. Additional information
regarding the posting of public comments is in the SUPPLEMENTARY
INFORMATION section.
FOR FURTHER INFORMATION CONTACT: John N. Blum, Acting General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2600, Falls Church, Virginia, 22041, telephone (703) 305-0470 (not a
toll-free call).
SUPPLEMENTARY INFORMATION:
Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter.
If you want to submit personal 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 ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment. You must also
locate all the personal identifying information you do not want posted
online 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 must also 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
http://www.regulations.gov.
Personal identifying information identified and 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. If you
wish to inspect the agency's public docket file in person by
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.
This rule proposes to amend 8 CFR parts 1001, 1003, and 1292 by
changing the present definitions and procedures concerning professional
conduct for practitioners, which term includes attorneys and
representatives, who
[[Page 44179]]
practice before the Executive Office for Immigration Review (EOIR). The
proposed rule seeks to implement measures in response to the Attorney
General's recent assessment of the Board of Immigration Appeals (Board)
and the Immigration Courts with respect to the authority that each
tribunal utilizes in disciplining and deterring professional
misconduct. The proposed rule also aims to improve EOIR's ability to
effectively regulate practitioner conduct by implementing technical
changes with respect to the definition of attorney and clarifying who
is authorized to represent and appear on behalf of individuals in
proceedings before the Board and the immigration judges.
The final regulations concerning representation and appearances
were last promulgated on May 1, 1997 (62 FR 23634). The regulations for
the rules and procedures concerning professional conduct were last
promulgated as a final rule on June 27, 2000 (65 FR 39513). The
professional conduct final rule outlined the authority of the EOIR
General Counsel to investigate complaints and pursue disciplinary
sanctions against attorneys and other practitioners who appear before
the immigration judges and the Board and revised the process for the
adjudication of those complaints. As a result, the EOIR General Counsel
is now responsible for enforcing the prohibition against criminal,
unethical, unprofessional and frivolous conduct occurring before the
immigration judges and the Board. See Professional Conduct for
Practitioners--Rules and Procedures, 65 FR 39513 (June 27, 2000).
The former Immigration and Naturalization Service (INS)
incorporated by reference in its regulations EOIR's grounds for
discipline and procedures for disciplinary proceedings. INS did so when
both it and EOIR were part of the Department of Justice. Since the
promulgation of the final professional conduct rule in June of 2000,
the functions of the former INS were transferred from the Department of
Justice to the Department of Homeland Security (DHS) pursuant to the
Homeland Security Act of 2002, Public Law No. 107-296, 116 Stat. 2135,
2178 (Nov. 25, 2002), as amended (codified primarily at 6 U.S.C. 101 et
seq.). Accordingly, the Attorney General reorganized title 8 of the
Code of Federal Regulations, creating a new chapter V in 8 CFR for
functions retained by the Department of Justice, beginning with 8 CFR
part 1001. 68 FR 9824 (Feb. 28, 2003); 68 FR 10349 (March 5, 2003).
Chapter V now contains the regulations governing EOIR, while the
immigration regulations of DHS are contained in chapter I in 8 CFR. The
rules and procedures concerning professional conduct for representation
and appearances before the immigration judges and the Board are now
codified in 8 CFR part 1003, subpart G. The rules for representation
and appearances before the immigration judges and the Board are
codified in 8 CFR part 1292. The rules for representation and
appearances and for professional conduct before DHS and its components
remain codified in 8 CFR parts 103 and 292.
Both sets of rules provide a unified process for disciplinary
hearings whether the hearing is instituted by EOIR or by DHS. See
generally Matter of Shah, 24 I&N Dec. 282 (BIA 2007) (imposing
discipline on attorney who knowingly and willfully misled USCIS by
presenting an improperly obtained certified Labor Condition Application
in support of a nonimmigrant worker petition). For instance, 8 CFR
292.3(b) provides for the imposition of disciplinary sanctions against
practitioners who appear before DHS for violating the grounds of
discipline stated in 8 CFR 3.102 (now codified as Sec. 1003.102). See
also 8 CFR 1292.3(b) (parallel EOIR regulations). Further, DHS
disciplinary hearings are to be heard and decided according to 8 CFR
3.106(a), (b), and (c) (now codified as Sec. 1003.106), which govern
EOIR disciplinary hearings. See 8 CFR 292.3(f) (DHS regulations) and
1292.3(b), (f) (parallel EOIR regulations). Finally, both sets of rules
provide for cross-discipline, which allows EOIR to request that any
discipline imposed against a practitioner for misconduct before DHS
also be imposed with respect to that practitioner's ability to
represent clients before the immigration judges and the Board, and vice
versa. See 8 CFR 292.3(e)(2) (DHS) and 1003.105(b) (EOIR).
This proposed rule amends only the EOIR regulations governing
representation and appearances, and professional conduct under chapter
V in 8 CFR. This rule does not make any changes to the DHS regulations
governing representation and appearances or professional conduct.
Currently, the disciplinary regulations allow EOIR to sanction
practitioners, including attorneys and certain non-attorneys who are
permitted to represent individuals in immigration proceedings
(``representatives''), when discipline is in the public interest;
namely, when a practitioner has engaged in criminal, unethical,
unprofessional conduct or frivolous behavior. Sanctions may include
expulsion or suspension from practice before EOIR and DHS, and public
or private censure. EOIR frequently suspends or expels practitioners
who are subject to a final or interim order of disbarment or suspension
by their state bar regulatory authorities--this is known as
``reciprocal'' discipline.\1\ As of January 2008, EOIR has disciplined
380 practitioners since the rules took effect in 2000.
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\1\ ``Reciprocal discipline'' is not to be confused with the
``cross-discipline'' between EOIR and DHS codified as ``reciprocity
of disciplinary sanctions'' in 8 CFR 292.3(e)(2) and 1003.105(b).
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The Attorney General completed a comprehensive review of EOIR's
responsibilities and programs, and determined that the immigration
judges should have the tools necessary to control their courtrooms and
protect the adjudicatory system from fraud and abuse. Accordingly, the
Attorney General determined that the existing regulations, including
those at 8 CFR 1003.101-109, should be amended to provide for
additional sanction authority for false statements, frivolous behavior,
and other gross misconduct. Additionally, the Attorney General found
that the Board should have the ability to effectively sanction
litigants and practitioners for defined categories of gross misconduct.
As a result, this proposed rule seeks to preserve the fairness and
integrity of immigration proceedings, and increase the level of
protection afforded to aliens in those proceedings by defining
additional categories of behavior that constitute gross misconduct.
In part, the proposed rule responds to the Attorney General's
prescribed measures by adding substantive grounds of misconduct
pursuant to the American Bar Association Model Rules of Professional
Conduct (2006) (ABA Model Rules) that will subject practitioners to
sanctions if they violate such standards and fail to provide adequate
professional representation for their clients. Specifically, the
grounds for sanctionable misconduct have been revised to include
language that is similar, and sometimes identical, to the language
found in the ABA Model Rules, as such disciplinary standards are widely
known and accepted within the legal profession. Although EOIR does not
seek to supplant the disciplinary functions of the various state bars,
this proposed rule aims to strengthen the existing rules in light of
the apparent gaps in the current regulation. See Matter of Rivera-
Claros, 21 I&N Dec. 599, 604 (BIA 1996). In addition, these revisions
will make the EOIR professional conduct requirements
[[Page 44180]]
more consistent with the ethical standards applicable in most states.
This proposed rule would also enhance the existing regulation by
amending the current procedures and definitions through technical
modifications that are more consistent with EOIR's authority to
regulate practitioner misconduct. See Koden v. U.S. Dep't of Justice,
564 F.2d 228, 233 (7th Cir. 1977); 8 U.S.C. 1103, 1362. For example,
the proposed rule would amend the definition of ``attorney'' at 8 CFR
1001.1(f) by adding language stating that an attorney is one who is
eligible to practice law in a U.S. state or territory. Additionally,
this proposed rule would amend the language at 8 CFR 1292.1(a)(2) to
clarify that law students and law graduates must be students and
graduates of accredited law schools in the United States. Accordingly,
the proposed rule will allow EOIR to investigate and prosecute
instances of misconduct more effectively and efficiently while ensuring
the due process rights of both the client and the practitioner.
This Proposed Rule
A. Section 1001.1(f)--Definition of Attorney
Section 1001.1 paragraph (f) defines ``attorney'' as that term is
used in section 8 CFR 1292.1, Representation of others, which regulates
who may represent individuals in proceedings before the immigration
judges and the Board. The proposed rule would revise the definition of
``attorney'' to clarify that any attorney who practices before EOIR
must be eligible to practice law in at least one State, possession,
territory, or Commonwealth of the United States, or the District of
Columbia.
Presently, EOIR must recognize an attorney who is in good standing
with a state licensing authority so long as the attorney has not been
suspended or disbarred. However, in some states, an attorney may be
able to obtain a certificate of good standing from the licensing
authority, but still be administratively ineligible to practice law in
that state. This proposed change will ensure that an attorney may
practice before EOIR only if he or she is both in good standing and
maintains a status with the state licensing authority that permits
practice in the courts of that state. In many jurisdictions, the only
status that will permit practice before the state courts will be
``active'' status. However, in some jurisdictions, inactive or retired
attorneys have a limited right to practice before state courts if the
inactive or retired attorneys' representation is without compensation
(i.e., pro bono). So long as inactive or retired attorneys have such a
right to limited practice and they comply with all of the requirements
imposed by their state licensing authority in all of their cases before
EOIR, then EOIR would consider those attorneys to be eligible to
practice law for the purpose of section 1001.1(f).
B. Part 1003, Subpart G--Professional Conduct for Practitioners--Rules
and Procedures
1. Section 1003.102--Grounds of Misconduct
Section 1003.102 of the regulations sets forth the grounds of
discipline against practitioners. This rule proposes to revise
paragraphs (e), (k), and (l) and to add several additional grounds of
discipline as described below.
a. Section 1003.102(e)--Reciprocal Discipline
Presently, EOIR may impose discipline on a practitioner if the
practitioner resigns, with an admission of misconduct, from practice in
a state jurisdiction, a federal court, or an executive branch
department, board, commission, or other government entity. The result
of this rule is that EOIR cannot discipline a practitioner who resigned
from practice in another jurisdiction, court, or agency while a
disciplinary investigation or proceeding was pending if the
practitioner did not admit misconduct during that investigation or
proceeding. This provides practitioners with an incentive to resign
from another jurisdiction, court, or agency without admitting
misconduct in order to continue to practice before EOIR. Therefore, we
propose to amend our rule to be consistent with the recommended
practice of the American Bar Association, as stated in Rule III(A) of
the Model Federal Rules of Disciplinary Enforcement, by permitting the
imposition of discipline on an attorney who resigns while a
disciplinary investigation or proceeding is pending.
b. Section 1003.102(k)--Previous Finding of Ineffective Assistance of
Counsel
One ground for sanctions is the ineffective assistance of counsel
as previously determined by the Board or an immigration judge. This
proposed rule would extend this ground to include findings made by
federal court judges. Many aliens appeal decisions by the Board to the
federal circuit courts, which now receive approximately 750 petitions
for review per month challenging decisions of the Board. In such cases,
the federal court sometimes makes a finding that an attorney provided
ineffective assistance of counsel in an immigration proceeding. Whether
such a finding is made by an immigration judge, the Board, or a federal
court, the harm to the alien remains the same, and this revision will
allow the EOIR disciplinary process to take account of findings of
ineffective assistance of counsel in EOIR proceedings made by a federal
court.
c. Section 1003.102(l)--Failure To Appear in a Timely Manner
Currently Sec. 1003.103(l) provides for disciplinary sanctions for
practitioners who repeatedly fail to appear for scheduled hearings in a
timely manner without good cause. This proposed rule would make the
language of this ground more general, to cover failure to appear for
``pre-hearing conferences, scheduled hearings, or case-related
meetings'' in a timely manner.
d. Section 1003.102(n)--Conduct Prejudicial to the Administration of
Justice
This rule proposes to add a new ground for disciplinary sanctions
at Sec. 1003.102(n) with respect to conduct that is ``prejudicial to
the administration of justice or undermines the integrity of the
adjudicative process.''
The prohibition on conduct prejudicial to the administration of
justice is found in the ABA Model Rules and such conduct is widely
recognized within the legal profession as a sanctionable offense. See
ABA Model Rule 8.4(d) (stating that ``[i]t is professional misconduct
for a lawyer to * * * engage in conduct that is prejudicial to the
administration of justice''). In this regard, EOIR's mandate to fairly
and efficiently adjudicate cases under the immigration laws of the
country remains the single most important function of the agency. As a
result, safeguarding the adjudicative process from abuse is necessary
in order to achieve this function, and accordingly, misconduct that
jeopardizes or otherwise impairs the administration of justice will be
subject to sanctions.
In discerning the most appropriate parameters for this ground, In
re Hopkins, 677 A.2d 55, 60-61 (D.C. 1996), is instructive. In that
case, the D.C. Court of Appeals held that an attorney's conduct must
satisfy the following criteria for such conduct to be viewed as
prejudicial to the administration of justice. First, the conduct, which
includes any action or inaction, depending on the circumstances, must
be considered
[[Page 44181]]
improper. Improper conduct occurs, for instance, when the practitioner
``violates a specific statute, court rule or procedure, or other
disciplinary rule,'' but impropriety may also be found when,
considering all the circumstances, the practitioner ``should know that
he or she would reasonably be expected to act in such a way as to avert
any serious interference with the administration of justice.'' Id. at
61.
Second, in order to fall under the domain of the ``administration
of justice,'' the conduct ``must bear directly upon the judicial
process * * * with respect to an identifiable case or tribunal.'' Id.
Third, the practitioner's conduct ``must taint the judicial process in
more than a de minimis way; that is, at least potentially impact upon
the process to a serious and adverse degree.'' Id. As a result, conduct
that will generally be subject to sanctions under this ground includes
any action or inaction that seriously impairs or interferes with the
adjudicative process when the practitioner should have reasonably known
to avoid such conduct.
e. Section 1003.102(o)--Competence
This rule proposes to add a new ground for disciplinary sanction at
section 1003.102(o). As noted above, the revised grounds for
disciplinary sanctions include language that is similar, if not
identical to, the ABA Model Rules. In this case, the proposed rule
incorporates language from ABA Model Rule 1.1, which deals with
providing competent representation, and language from the comments on
Model Rule 1.1 relating to ``Thoroughness and Preparation.'' See ABA
Model Rule 1.1. While most practitioners competently represent their
clients in immigration proceedings, a small percentage of the
practitioners do not meet the minimum standards set forth in this rule,
which includes the requisite ``legal knowledge, skill, thoroughness,
and preparation reasonably necessary'' for representation, and the use
of ``methods and procedures meeting the standards of competent
practitioners.'' As this principle has been one of the hallmarks of the
ABA Model Rules, we find that the existing rule should incorporate a
provision devoted to competence in order to ensure that all
practitioners meet minimal performance standards in rendering services.
We note that many clients, given their unfamiliarity with immigration
law and their potentially limited ability to communicate and express
themselves effectively, are likely to rely heavily on a practitioner's
assistance in immigration matters. In addition, the comments in the ABA
Model Rules state that the requisite level of attention and preparation
are determined, in part, by what is at stake. The stakes are quite high
in immigration proceedings, which determine whether aliens are allowed
to remain in the United States. As such, competence is perhaps the most
fundamental and necessary element in providing representation to
clients in immigration proceedings.
f. Section 1003.102(p)--Scope of Representation
This rule proposes to add a new ground for disciplinary sanction at
Sec. 1003.102(p). Here, the proposed rule incorporates language from
ABA Model Rule 1.2, which primarily deals with the scope of
representation, and language from the comments on Model Rule 1.2
relating to ``Allocation of Authority between Client and Lawyer.'' See
ABA Model Rule 1.2. This rule would require a practitioner to ``abide
by a client's decisions concerning the objectives of representation''
and to ``consult with the client as to the means by which they are to
be pursued.''
Thus, as a general matter, this obligation requires the
practitioner to act in accordance with the scope of representation in
attempting to meet the client's goals, as determined by the terms of
the client-practitioner relationship. The scope of representation, of
course, is a fact-specific matter that turns on the specific agreements
in each case. By increasing the emphasis on clarity in the scope of
representation agreement, this ground will also protect practitioners
from spurious complaints of ineffective assistance of counsel by
ensuring that parties to a representation agreement fully understand
the scope of representation.
To illustrate, clients who submit complaints of ineffective
assistance of counsel often allege that they retained representation
for the duration of immigration proceedings--meaning that the
practitioner who agreed to represent the client consented to carry out
the terms of the client-practitioner agreement before the immigration
judge and, if necessary, the Board--but that the practitioner in their
case failed to submit an appeal brief to the Board after indicating in
the Notice of Appeal that a brief would be filed. In most cases, this
failure will result in a dismissal of the alien's case and a
deportation or removal order will be issued as the final agency
decision. If the practitioner had agreed to represent the client not
only before the immigration judge but also with respect to an appeal to
the Board, the practitioner's negligence or misconduct in failing to
file a brief resulted in the client's objectives being thwarted in such
instances. Practitioners who fail to abide by the scope of
representation will be subject to discipline under this ground.
This rule also requires that the practitioner and client reach a
``mutually acceptable resolution'' should any disagreements arise, and
that if such efforts are unavailing in the face of a fundamental
disagreement, the practitioner is allowed to request a withdrawal from
the case under the applicable standards. See 8 CFR 1003.17(b) (allowing
for a withdrawal or substitution of an attorney or representative when
an immigration judge permits such a request based on an oral or written
motion) and 1003.38(g) (allowing for a withdrawal or substitution of an
attorney or representative when the Board permits such a request based
on a written motion); see also Matter of Rosales, 19 I&N Dec. 655, 657
(BIA 1988) (stating that a motion to withdraw ``should include evidence
that [the practitioner] attempted to advise the respondent, at his last
known address, of the date, time, and place of the scheduled hearing,''
and ``provide the immigration judge with the respondent's last known
address. * * *'').
One of the primary goals of this proposed rule is to preserve the
fairness and integrity of the adjudicative process in immigration
proceedings. However, this goal cannot be achieved when a practitioner
fails to adhere to his or her clients' objectives by effectively
withdrawing from their case without providing them ample notice so that
they can retain another practitioner to represent them. Indeed,
improper withdrawals in immigration proceedings have been discussed by
various federal circuit courts of appeals, which have generally held
that such withdrawals violate a client's right to receive a
fundamentally fair hearing. See, e.g., Gjeci v. Gonzales, 451 F.3d 416,
422 (7th Cir. 2006) (stating that ``a lawyer's professional
responsibility upon withdrawal includes the duty to take reasonable
steps to avoid foreseeable prejudice to the rights of the client,
including giving notice to the client, allowing time for the employment
of other counsel, and delivering to the client all [necessary] papers
and property. * * *'') (citing ABA Model Rule 1.16(d) (2004)).
Furthermore, immigration judges have stated that they are frequently
forced to reschedule cases due to a practitioner's failure to inform
the client of his or her possible nonappearance at a scheduled
[[Page 44182]]
hearing or to properly request a withdrawal from the case. Given the
considerable caseloads that immigration judges are required to manage,
a practitioner's failure to appear or improper withdrawal in a case not
only may result in significant harm to the client. Such conduct may
also impede the immigration judges', and consequently the agency's,
ability to efficiently adjudicate cases, causing unnecessary delays for
other parties seeking to have their cases timely heard and adjudicated.
g. Section 1003.102(q)--Diligence
This rule proposes to add a new ground for disciplinary sanction at
section 1003.102(q). In this instance, the proposed rule incorporates
language from ABA Model Rule 1.3, which pertains to acting with
``reasonable diligence and promptness in representing a client,'' and
language from the comments to Model Rule 1.3 relating to: (1)
Controlling and managing one's workload so that each matter can be
handled competently; (2) acting with reasonable promptness particularly
with respect to time and filing restrictions; and (3) continuing the
representation to the conclusion of all matters undertaken for the
client, unless the relationship is terminated pursuant to 8 CFR
1003.17(b) for proceedings before the immigration courts or 8 CFR
1003.38(g) for proceedings before the Board. See ABA Model Rule 1.3.
Given that most practitioners appearing in immigration matters
exemplify high standards of professional conduct, this provision will
primarily affect those whose conduct raises questions about their
fitness to represent aliens in such matters. Nonetheless, the gravity
of the consequences of failing to act diligently cannot be overstated
in this context, as immigration proceedings are meant to determine who
is allowed to lawfully remain in this country. Diligence is a
particularly important aspect of representing clients in immigration
proceedings because those proceedings are subject to numerous filing
requirements and other time-sensitive conditions. Unfortunately, in too
many cases, an alien's interests may be compromised due to a
practitioner's failure to observe time-related and filing
considerations. Indeed, complaints of ineffective assistance of counsel
often include allegations regarding a practitioner's failure to timely
submit notices, applications, briefs, or other relevant matters
pursuant to recognized rules and practices governing filing
requirements. See, e.g., 8 CFR 1003.38(b) (requiring that the Notice of
Appeal be filed with the Board within 30 days after an immigration
judge issues his or her decision); 8 CFR 1003.2(b)(2) (requiring that a
motion to reconsider be filed within 30 days after the mailing of the
Board's decision); 8 CFR 1003.2(c)(2) (requiring that a motion to
reopen be filed within 90 days after the date of the final
administrative decision). In such instances, a client's interests might
be seriously compromised if a practitioner fails to meet these
deadlines.
The duty to act diligently will often function in tandem with the
scope of representation, as discussed above. To the extent of the
agreed-upon scope of representation, the practitioner is required to
handle all matters both competently and in a timely manner, and
disputes with the client do not obviate his or her duties in this
regard unless the relationship is formally terminated, as described
above.
Thus, given that the duty to diligently represent a client
exemplifies a practitioner's most basic duty to execute the terms of
the representation within a reasonable time, combined with the fact
that the appeals process and most applications for relief operate under
time-sensitive constraints, this proposed addition to the sanctionable
grounds of misconduct represents a significant measure to safeguard the
public against negligent and defective representation.
h. Section 1003.102(r)--Communication
This rule proposes to add a new ground for disciplinary sanction at
section 1003.102(r). Here, the proposed rule incorporates language from
ABA Model Rule 1.4, which deals with the duty to maintain communication
with the client, and language from the comments on Model Rule 1.4
relating to ``Communicating with Client.'' See ABA Model Rule 1.4.
Specifically, this duty includes (1) promptly informing and consulting
with the client in any matter when his or her informed consent is
reasonably required; (2) reasonably consulting with the client about
the means by which the client's objectives are to be accomplished; (3)
keeping the client reasonably informed about the status of the matter;
and (4) promptly complying with reasonable requests for information.
Id. This proposed rule also mandates that when a practitioner's prompt
response is not feasible, he or she, or a member of his or her staff,
``should acknowledge receipt of the request and advise the client when
a response may be expected.''
A practitioner's duty to maintain communication with a client is of
fundamental importance. For instance, some practitioners fail to inform
clients of scheduled hearings. In addition, negligence in discussing
relevant facts and issues often prevents a client's objectives from
being met. Ineffective assistance of counsel claims routinely involve
the failure of the practitioner to meet with the client sufficiently in
advance of a scheduled hearing to review material and substantive
issues. And some practitioners subject clients to inadequate impromptu
meetings that occur immediately before the time in which testimony by
the client is to be presented to the immigration judge. Often, such
poor and insufficient communication with a client not only jeopardizes
the client's case but also undermines the integrity of the
administrative process, which requires an examination of all relevant
information while giving sufficient opportunities to the respective
parties to present necessary and relevant evidence. Communications with
a client should be scheduled sufficiently in advance to provide proper
notice of the date and time of scheduled hearings, allow proper
preparation for the hearing, and permit submission of motions,
applications, evidence, and other matters in compliance with applicable
deadlines, including advance filing deadlines set by the immigration
judge. Finally, given the nature of immigration proceedings, the
regulation makes clear that it is the obligation of the practitioner to
ensure that all necessary communications are in a language that the
client understands.
i. Section 1003.102(s)--Candor Toward the Tribunal
This rule proposes to add a new ground for disciplinary sanction at
section 1003.102(s). In this instance, the proposed rule incorporates
language from ABA Model Rule 3.3, which deals with, inter alia, the
duty to ``disclose to the tribunal legal authority in the controlling
jurisdiction known to the practitioner to be directly adverse to the
position of the client and not disclosed by opposing counsel.'' See ABA
Model Rule 3.3. This rule is meant to deter a practitioner from
neglecting to cite specific legal authority to the adjudicator that is
known to be adverse to a client's position. Adequate representation
requires an individualized assessment of a given client's factual
history and the legal issues involved in his or her claim, while
specifically addressing case law or other legal standards that are
contrary to such a claim. Representation that fails to disclose such
integral information undermines the purpose and credibility of the
administrative process, and undermines the level of trust and
[[Page 44183]]
confidence that a client has toward a practitioner.
j. Section 1003.102(t)--Notice of Entry of Appearance
This rule proposes to add a new ground for disciplinary sanction at
section 1003.102(t). This ground of the proposed rule is patterned
after language in Rule 11 of the Federal Rules of Civil Procedure
(FRCP), which requires that all pleadings, motions, or other papers
submitted to a court be signed by at least one attorney of record, or
when the client is unrepresented, by the party. In each case where the
alien is represented, this proposed rule requires that ``every
pleading, application, motion, or other filing * * * be signed by the
practitioner of record in his or her individual name.''
In this regard, the proposed rule subjects a practitioner to
sanctions should he or she fail to submit a signed and completed Notice
of Entry of Appearance as Attorney or Representative when the
practitioner has ``prepared, completed, or otherwise participated in
the completion or submission of any pleading, application, motion, or
other filing, and * * * [h]as been deemed to engage in a pattern or
practice of failing to submit such Forms as required.'' This includes
the submission of Form EOIR-28, as required by Sec. 1003.17(a) for
cases pending before an immigration judge and Form EOIR-27, as required
by Sec. 1003.3(a)(3), for appeals filed with the Board.
This provision is intended to address the growing problem of
practitioners who seek to avoid the responsibilities of formal
representation by routinely failing to submit the required notice of
entry of appearance forms. Furthermore, the difficulties in pursuing a
practitioner for discipline for participating in the preparation of
false or misleading documents are apparent when the practitioner fails
to submit a completed notice of entry of appearance form.
The United States Court of Appeals for the Ninth Circuit has
recognized that the notice of appearance requirement at 8 CFR
1003.38(g) serves important purposes. See Singh v. INS, 315 F.3d 1186,
1189 (9th Cir. 2003) (noting that the Board ``has a substantial
interest in assuring that, at any given time, there is no ambiguity as
to who has been given, and who has accepted, the responsibility of
representing a party before it.''). Pursuant to the regulations, ``the
notice of appearance constitutes an affirmative representation by the
purported representative to the [Board] that he or she is qualified to
be a representative under the applicable regulations, that he or she
has been authorized by the party on whose behalf he or she appears, and
that he or she accepts the responsibility of representation until
relieved.'' Id. The court also held that a client's due process right
to be represented by counsel of his or her choice is not impaired by
``reasonable rules of process'' that can be satisfied with minimal
effort. See id. at 1190-91.
Given that these amendments are meant to advance the level of
professional conduct in immigration matters and foster increased
transparency in the client-practitioner relationship, the Department
does not believe that a practitioner who agrees to undertake a client's
case--thereby causing the client to reasonably rely on his or her
claims as to the competency of such representation--should be able to
avoid the legal obligations that flow from such a relationship. Thus,
any practitioner who accepts responsibility for rendering immigration-
related services to a client should be held accountable for his or her
actions, including the loss of the privilege of practicing before the
immigration judges and the Board, when such conduct fails to meet the
minimal standards of professional conduct described in section
1003.102. In this regard, these provisions are similar to the policies
of the Internal Revenue Service and other federal agencies that require
signatures of professionals retained to assist in the filing of various
forms and applications. In this context, the goals of incorporating
such measures include accountability for the preparer and presenter of
documents that are submitted to the government and the elimination of
fraudulent practices that undermine a client's ability to seek recourse
against a practitioner when the practitioner fails to formally
acknowledge representation and subsequently provides ineffective
assistance of counsel or otherwise engages in misconduct.
k. Section 1003.102(u)--Repeated Filings Indicating a Substantial
Failure to Competently and Diligently Represent the Client
This rule proposes to add a new ground for disciplinary sanction at
section 1003.102(u) with respect to filings made to an adjudicator. In
such circumstances, the proposed rule will subject a practitioner to
sanctions if he or she ``repeatedly files notices, motions, briefs, or
claims that reflect little or no attention to the specifics of a
client's case, but rather rely on boilerplate language indicative of a
substantial failure to competently and diligently represent the
client.'' This addition to the grounds of sanctionable misconduct is
being proposed because of the frequency with which this kind of
behavior occurs and to ensure that practitioners are fully aware that
such conduct is considered inappropriate and unacceptable.
The Board has experienced situations in which the same practitioner
repeatedly, on behalf of different clients, files boilerplate briefs
and motions, with no recitation of the specific facts and little or no
application of law to the facts of a case. Moreover, the Board has
experienced situations in which the same practitioner repeatedly
submits appellate briefs that are nearly identical, with little or no
regard for the specific facts in his or her client's case. EOIR has
also observed that in these situations, the practitioners often fail to
brief the issues that are critical to their client's case.
Practitioners who engage in this behavior may be subject to
sanctions when the behavior indicates a substantial failure to
competently and diligently represent the client. See, e.g., ABA Model
Rules 1.1, 1.3, and proposed Sec. 1003.102(o). While such behavior may
be subject to sanctions under other grounds, the Department believes
that a separate category for practitioners who repeatedly engage in
this behavior will tend to deter practitioners from taking advantage of
clients who lack the knowledge or language skills to protect
themselves. This additional category will also enhance the government's
ability to preserve the integrity of immigration matters as well as
prevent abuse of the administrative process.
2. Section 1003.103--Immediate Suspension and Summary Disciplinary
Proceedings; Duty of Practitioner To Notify EOIR of Conviction or
Discipline
a. Section 1003.103(a)--Immediate Suspension
Section 1003.103(a) allows for immediate suspension of a
practitioner who has been convicted of a serious crime, or an attorney
who has been disbarred or suspended or has resigned with an admission
of misconduct. This rule proposes to revise section 1003.103(a)(1) to
clarify that immediate suspension under this section may be imposed
against an attorney placed on an interim suspension in state licensing
authority or federal court discipline proceedings pending a final
resolution of the underlying disciplinary matter. Certain misconduct
poses such an immediate threat to the public that a
[[Page 44184]]
state licensing authority or federal court will immediately suspend an
attorney pending final determination of the ultimate discipline to be
imposed. An attorney who is thus restricted by a state licensing
authority or federal court in the practice of law is not authorized to
represent individuals pursuant to 8 CFR 1292 (representation and
appearances). Accordingly, this proposed rule clarifies the existing
regulation to ensure conformity with the rules on representation and
appearances, and also to ensure that individuals in immigration
proceedings are sufficiently protected from practitioners who engage in
the most egregious misconduct. Further, we propose to remove the
requirement that an attorney resign with an admission of misconduct and
instead add a new standard, which permits an immediate suspension when
an attorney resigns while a disciplinary investigation or proceeding is
pending. This change is consistent with our proposal to modify section
1003.102(e) as explained earlier.
b. Section 1003.103(a)(2)--Public Postings of Immediate Suspensions
This rule proposes to revise section 1003.103(a)(2) to clarify that
notices of immediate suspensions may be posted publicly. This change is
proposed to ensure consistency with 8 CFR 1003.106(c), which currently
provides that notice of disciplinary sanctions may be posted publicly,
and corrects an oversight in the prior publication of the rule.
c. Section 1003.103(b)--Initiation of Disciplinary Proceedings
Section 1003.103(b) provides that summary disciplinary proceedings
shall be initiated ``promptly'' against a practitioner who has been
convicted of a serious crime, or an attorney who is subject to a final
order of suspension or disbarment or who has resigned with an admission
of misconduct. In reciprocal discipline cases (when an attorney has
already been suspended or disbarred), summary disciplinary proceedings
can only be initiated by EOIR once a final order has been issued in the
state licensing authority or federal court disciplinary proceeding. 8
CFR 1003.102(e)(1). Such state licensing authority or federal court
disciplinary proceedings can sometimes take months, if not years, to
complete. Because EOIR summary disciplinary proceedings found at 8 CFR
1003.103(b) require the submission of a certified copy of the final
order from the licensing state or federal court, EOIR cannot commence
those proceedings until the underlying disciplinary process has been
completed. Therefore, this rule proposes to revise Sec. 1003.103(b) to
clarify that EOIR summary disciplinary proceedings will be promptly
commenced upon receipt of a certified copy of the final decision of the
state licensing authority or federal court. Consistent with the
proposed changes to Sec. Sec. 1003.102(e) and 1003.103(a)(1), we
propose to modify this provision by changing the basis for summary
disciplinary proceedings from a resignation with an admission of
misconduct to a resignation while a disciplinary investigation or
proceeding is pending.
d. Section 1003.103(b)(2)--Burden of Proof
Section 1003.103(b)(2)--in addition to Sec. Sec.
1003.106(a)(1)(iv), 1003.106(b), and 1003.107(b)(1)--currently employs
a burden of proof that requires the practitioner, counsel for the
government, or adjudicating official to demonstrate certain aspects of
the disciplinary proceeding by ``clear, unequivocal, and convincing
evidence.'' This proposed rule would amend the burden of proof in these
instances by removing the term ``unequivocal'' in order to conform with
the standard of ``clear and convincing evidence'' that is currently
used by immigration judges and the Board in, inter alia, determining
deportability. See section 240(c)(3) of the Act, 8 U.S.C. 1229a(c)(3).
This change in the burden of proof was originally mandated by section
304 of the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (IIRIRA), which removed the term ``unequivocal'' from section
240(c)(3) of the Act. See id. (stating that the government ``has the
burden of establishing by clear and convincing evidence that * * * the
alien is deportable''). Further, the current rule at Sec.
1003.106(a)(1)(v) states that ``[d]isciplinary proceedings shall be
conducted in the same manner as Immigration Court proceedings as is
appropriate. * * *'' See 8 CFR 1003.106(a)(1)(v). Thus, in order to
provide a disciplinary process that corresponds to existing procedures
and burdens of proof, as well as authorize adjudicating officials to
utilize prevailing standards and terminology in the course of their
decisionmaking, this rule proposes to eliminate the ``unequivocal''
language in the aforementioned sections. While such a change likely
will not result in much, if any, measurable effect, it is appropriate
to maintain consistency with existing procedures in proceedings before
the immigration judges to allow all parties to operate under a familiar
and widely accepted framework.
3. Section 1003.104(d)--Referral of Complaints
Section 1003.104(d) provides that EOIR shall make a referral to the
Inspector General and, if appropriate, to the FBI of credible
information or allegations of criminal conduct involving a
practitioner. In the light of experience, and the transfer of the
authority of the former INS to DHS, this rule proposes to revise
section 1003.104(d) also to provide for referral of such information or
allegations to DHS, the U.S. Attorney, or other law enforcement agency.
4. Section 1003.105--Notice of Intent To Discipline
Section 1003.105 provides that EOIR will serve a Notice of Intent
to Discipline, containing a statement of the charge(s) and a
preliminary inquiry report, if sufficient evidence exists to warrant
charging a practitioner with professional misconduct. We propose to
modify this section regarding service of the Notice of Intent to
Discipline and to limit the circumstances under which we will serve a
preliminary inquiry report with a Notice of Intent to Discipline. We
also plan to divide this section into two subparagraphs. Finally, we
plan to specify that we will serve a copy of the Notice of Intent to
Discipline on the practitioner who was the subject of the preliminary
inquiry, and that the Office of the General Counsel for EOIR will file
the Notice of Intent to Discipline with the Board.
Section 1003.105 currently states that the Office of the General
Counsel for EOIR will serve a Notice of Intent to Discipline in the
manner specified in 8 CFR 103.5a. Although Sec. 103.5a was originally
promulgated when former INS was part of the Department of Justice,
section 103.5a is now a DHS regulation. Accordingly, we are removing
the cross-reference to a DHS regulation and replacing it with a full
text explanation of how we will serve a Notice of Intent to Discipline.
For this same reason and as indicated below, we are proposing to delete
two cross-references to Sec. 103.5a that appear in Sec. 1003.106, and
instead cross-reference existing EOIR regulations concerning service.
We propose to state that service of a Notice of Intent to
Discipline will be made either by certified mail to the practitioner's
last known address or personal delivery. As proposed, a practitioner's
last known address will be the address that EOIR has on record for the
practitioner if the practitioner is
[[Page 44185]]
representing a party before EOIR on the date the Notice of Intent to
Disqualify is served. If the practitioner does not have an active case
before EOIR, the last known address of the practitioner would depend on
the practitioner's status. If the practitioner is an attorney, then the
last known address would be the address that the attorney's state
licensing authority has on record for the attorney. The last known
address for an accredited representative would be that of the
recognized organization with which the accredited representative is
affiliated. Finally, the last known address for an accredited official
would be the embassy of the foreign government that employs the
accredited official.
We also propose to limit the circumstances under which we will
prepare and serve a copy of a preliminary inquiry report with the
Notice of Intent to Disqualify. A preliminary inquiry report summarizes
the source of any information uncovered in the investigation of a
disciplinary complaint, including the administrative record of
immigration proceedings, a record of state licensing authority or
federal court disciplinary proceedings, or a record of criminal
conviction. In summary disciplinary cases brought either as a result of
state licensing authority or federal court disciplinary proceedings, or
criminal convictions, the preliminary inquiry document provides no
additional information that is not also contained in the Notice of
Intent to Discipline. Therefore, this rule proposes to revise Sec.
1003.105(a) to state that in summary disciplinary proceedings EOIR is
not required to file a preliminary inquiry report along with the Notice
of Intent to Discipline.
5. Section 1003.106--Hearing and Disposition
a. Request for Hearing
Section 1003.106 sets forth hearing procedures for disciplinary
proceedings. In summary discipline cases brought either as a result of
state licensing authority or federal court disciplinary proceedings or
criminal convictions, the underlying basis to impose sanctions against
a practitioner already has been established via a disciplinary or
criminal proceeding. In such cases, there may be no need to re-litigate
or replicate the factual findings given that such authorized tribunals
or agencies have already made a finding of misconduct, or a violation
of criminal law which is often tantamount to a finding of misconduct.
Thus, in order to promote efficiency and avoid conducting unnecessary
evidentiary hearings, this rule proposes to amend the language in 8 CFR
1003.105(c)(3) and 8 CFR 1003.106 to provide that a hearing will be
held in disciplinary cases when a practitioner can demonstrate that
such a hearing is warranted.
Specifically, when a practitioner who is subject to summary
disciplinary proceedings pursuant to Sec. 1003.103(b) requests a
hearing, he or she must make a prima facie showing either that ``[h]e
or she can rebut the presumption of professional misconduct by
establishing one or more of the exceptions set forth in [sections]
1003.103(b)(2)(i)-(iii)'' or that ``[m]itigating factors exist and
should be considered with regard to the level of discipline to be
imposed.'' The proposed rule also retains the provision that the
opportunity for a hearing will be deemed waived when such a request is
not made.
b. Fifteen Day Waiting Period
Sections 1003.105(d)(2) and 1003.106(c) contain provisions stating
that any final order imposing discipline shall take effect no sooner
than fifteen days from the date of the order to provide disciplined
practitioners an opportunity to withdraw from pending matters and
notify clients. However, in cases in which the Board has already
imposed an immediate suspension pursuant to Sec. 1003.103, the
practitioner has already ceased practice and has had the opportunity to
withdraw from pending immigration matters. Therefore, by the time the
Board issues a final order imposing a suspension or expulsion, the
practitioner does not need the fifteen-day waiting period, as described
above, prior to the effective date of the final order of discipline.
Accordingly, this rule proposes to delete the fifteen-day waiting
period at 8 CFR 1003.105(d)(2) and 1003.106(c) for cases in which the
Board has already imposed an immediate suspension prior to the issuance
of a final order of discipline.
c. Service of Hearing Notices and Board Decisions
As discussed above in conjunction with the proposed changes to
Sec. 1003.105, we have decided to delete two cross-references to a DHS
regulation, 8 CFR 103.5a, in Sec. 1003.106. We propose to modify Sec.
1003.106 to cross-reference EOIR's existing regulations concerning
service.
6. Section 1003.107--Renewing an Entry of Appearance
Section 1003.107 permits a practitioner's reinstatement following
an expulsion or suspension provided that the practitioner complies with
the procedures set forth in the regulation. This rule proposes to add a
paragraph clarifying the practitioner's obligation to renew his or her
notice of entry of appearance by filing the appropriate forms in every
case in which he or she resumes representation before the Board and the
Immigration Courts.
C. Part 1292--Representation and Appearances
In Sec. 1292.1, paragraph (a)(2) provides that law students and
law graduates may represent individuals in proceedings before the
immigration judges and the Board. This provision has created some
confusion about graduates of foreign law schools who claim to be
eligible to practice before EOIR. The rule on appearances by law
students and law graduates was promulgated with the intent that such
individuals would provide representation only under proper supervision
and within the context of pro bono representation sponsored by an
accredited law school or a non-profit organization. See 55 FR 49250
(Nov. 27, 1990). This rule was not intended to permit graduates of
foreign law schools to practice law before EOIR without becoming duly
licensed in the United States. This proposed rule would amend the
language at 8 CFR 1292.1(a)(2) to clarify that law students and law
graduates must be students and graduates of accredited U.S. law
schools.
This proposed rule also removes paragraph (a)(6) of Sec. 1292.1,
which refers to foreign attorneys in matters being adjudicated outside
the United States. While the corresponding provision in the DHS
regulations, 8 CFR 292.1(a)(6), is relevant for foreign attorneys who
are involved in DHS adjudications conducted abroad, this provision is
not necessary for EOIR regulations since all EOIR adjudications are
conducted in the United States.
Regulatory Requirements
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant economic
impact on a substantial number of small entities. This rule affects
only those practitioners who practice immigration law before EOIR. This
rule will not affect small entities, as that term is defined in 5
U.S.C. 601(6), because the rule is similar in substance to the existing
regulatory process.
[[Page 44186]]
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Act of 1996 (5 U.S.C. 804). This
rule will not result in an annual effect on the economy of $100 million
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 12866--Regulatory Planning and Review
The Attorney General has determined that this rule is a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review, and, accordingly, this rule has
been submitted to the Office of Management and Budget for review.
Executive Order 13132--Federalism
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988--Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The provisions of the Paperwork Reduction Act of 1995, Public Law
104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR
part 1320, do not apply to this proposed rule because there are no new
or revised record keeping or reporting requirements.
List of Subjects
8 CFR Part 1001
Administrative practice and procedures, Immigration, Legal
Services.
8 CFR Part 1003
Administrative practice and procedures, Immigration, Legal
Services, Organization and functions (Government agencies), Reporting
and recordkeeping requirements.
8 CFR Part 1292
Administrative practice and procedures, Immigration, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, parts 1001, 1003, and
1292 of title 8 of the Code of Federal Regulations are proposed to be
amended as follows:
PART 1001--DEFINITIONS
1. The authority citation for part 1001 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103.
2. Amend Sec. 1001.1 by revising paragraph (f) to read as follows:
Sec. 1001.1 Definitions.
* * * * *
(f) The term attorney means any person who is eligible to practice
law in and is a member in good standing of the bar of the highest court
of any State, possession, territory, or Commonwealth of the United
States, or of the District of Columbia, and is not under any order
suspending, enjoining, restraining, disbarring, or otherwise
restricting him in the practice of law.
* * * * *
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; 8 U.S.C. 1103; 1252 note, 1252b, 1324b,
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.
Sec. 1003.1 [Amended]
4-5. Amend Sec. 1003.1 by removing from paragraph (d)(5) the
citation ``Sec. 1.1(j) of this chapter'' and adding in its place the
citation ``Sec. 1001.1(j) of this chapter''.
Subpart G--Professional Conduct for Practitioners--Rules and
Procedures
6. Amend Sec. 1003.102 by:
a. Removing from paragraph (j)(2) the citation ``Sec. 1003.1(d)(1-
a)'' and adding in its place the citation ``Sec. 1003.1(d)'';
b. Revising paragraphs (e) introductory text, (k), (l), and (m);
and by
c. Adding paragraphs (n) through (u), to read as follows:
Sec. 1003.102 Grounds.
* * * * *
(e) Is subject to a final order of disbarment or suspension, or has
resigned while a disciplinary investigation or proceeding is pending;
* * * * *
(k) Engages in conduct that constitutes ineffective assistance of
counsel, as previously determined in a finding by the Board, an
immigration judge in an immigration proceeding, or a Federal court
judge or panel, and a disciplinary complaint is filed within one year
of the finding;
(l) Repeatedly fails to appear for pre-hearing conferences,
scheduled hearings, or case-related meetings in a timely manner without
good cause;
(m) Assists any person, other than a practitioner as defined in
Sec. 1003.101(b), in the performance of activity that constitutes the
unauthorized practice of law;
(n) Engages in conduct that is prejudicial to the administration of
justice or undermines the integrity of the adjudicative process;
(o) Fails to provide competent representation to a client.
Competent representation requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for the
representation. Competent handling of a particular matter includes
inquiry into and analysis of the factual and legal elements of the
problem, and use of methods and procedures meeting the standards of
competent practitioners;
(p) Fails to abide by a client's decisions concerning the
objectives of representation and, in accordance with paragraph (r) of
this section, fails to consult with the client as to the means by which
they are to be pursued. In the case of a disagreement between the
practitioner and the client, the practitioner should consult with the
client and seek a mutually acceptable resolution of the disagreement.
If such efforts are unavailing and the practitioner has a fundamental
disagreement with the client, the practitioner may move to withdraw
from the representation in compliance with applicable rules and
regulations. Conversely, the client may resolve the disagreement by
discharging the practitioner;
(q) Fails to act with reasonable diligence and promptness in
representing a client.
[[Page 44187]]
(1) A practitioner's workload must be controlled and managed so
that each matter can be handled competently.
(2) A practitioner has the duty to act with reasonable promptness.
This duty includes, but shall not be limited to, complying with all
time and filing limitations. This duty, however, does not preclude the
practitioner from agreeing to a reasonable request for a postponement
that will not prejudice the practitioner's client.
(3) A practitioner should carry through to conclusion all matters
undertaken for a client, consistent with the scope of representation as
previously determined by the client and practitioner, unless the client
terminates the relationship or the practitioner obtains permission to
withdraw in compliance with applicable rules and regulations. If a
practitioner has handled a proceeding that produced a result adverse to
the client and the practitioner and the client have not agreed that the
practitioner will handle the matter on appeal, the practitioner must
consult with the client about the client's appeal rights and the terms
and conditions of possible representation on appeal;
(r) Fails to maintain communication with the client throughout the
duration of the client-practitioner relationship. It is the obligation
of the practitioner to ensure that all necessary communications are in
a language that the client understands. In order to properly maintain
communication, the practitioner should:
(1) Promptly inform and consult with the client concerning any
decision or circumstance with respect to which the client's informed
consent is reasonably required;
(2) Reasonably consult with the client about the means by which the
client's objectives are to be accomplished. Reasonable consultation
with the client includes the duty to meet with the client sufficiently
in advance of a hearing or other matter to ensure adequate preparation
of the client's case and compliance with applicable deadlines;
(3) Keep the client reasonably informed about the status of the
matter, such as significant developments affecting the timing or the
substance of the representation; and
(4) Promptly comply with reasonable requests for information,
except that in circumstances when a prompt response is not feasible,
the practitioner, or a member of the practitioner's staff, should
acknowledge receipt of the request and advise the client when a
response may be expected;
(s) Fails to disclose to the adjudicator legal authority in the
controlling jurisdiction known to the practitioner to be directly
adverse to the position of the client and not disclosed by opposing
counsel;
(t) Fails to submit a signed and completed Notice of Entry of
Appearance as Attorney or Representative in compliance with applicable
rules and regulations when the practitioner:
(1) Has prepared, completed, or otherwise participated in the
completion or submission of any pleading, application, motion, or other
filing, and
(2) Has been deemed to have engaged in a pattern or practice of
failing to submit such forms, in compliance with applicable rules and
regulations. Notwithstanding the foregoing, in each case where the
respondent is represented, every pleading, application, motion, or
other filing shall be signed by the practitioner of record in his or
her individual name; or
(u) Repeatedly files notices, motions, briefs, or claims that
reflect little or no attention to the specific factual or legal issues
applicable to a client's case, but rather rely on boilerplate language
indicative of a substantial failure to competently and diligently
represent the client.
7. Amend Sec. 1003.103 by:
a. Revising the first sentence in paragraph (a)(1);
b. Adding a new sentence after the second sentence in paragraph
(a)(2);
c. Revising the first and second sentences in paragraph (b)
introductory text; and by
d. Revising paragraph (b)(2) introductory text.
The revisions and addition read as follows:
Sec. 1003.103 Immediate suspension and summary disciplinary
proceedings; duty of practitioner to notify EOIR of conviction or
discipline.
(a) Immediate Suspension--
(1) Petition. The Office of the General Counsel of EOIR shall file
a petition with the Board to suspend immediately from practice before
the Board and the Immigration Courts any practitioner who has been
found guilty of, or pleaded guilty or nolo contendere to, a serious
crime, as defined in Sec. 1003.102(h), or any practitioner who has
been suspended or disbarred by, or while a disciplinary investigation
or proceeding is pending has resigned from, the highest court of any
State, possession, territory, or Commonwealth of the United States, or
the District of Columbia, or any Federal court, or who has been placed
on an interim suspension pending a final resolution of the underlying
disciplinary matter. * * *
(2) Immediate suspension. * * * If an immediate suspension is
imposed upon a practitioner, the Board may require that notice of such
suspension be posted at the Board, the Immigration Courts, or the DHS.
* * *
(b) Summary disciplinary proceedings. The Office of the General
Counsel of EOIR shall promptly initiate summary disciplinary
proceedings against any practitioner described in paragraph (a) of this
section by the issuance of a Notice of Intent to Discipline, upon
receipt of a certified copy of the order, judgment, and/or record
evidencing the underlying criminal conviction, discipline, or
resignation, and accompanied by a certified copy of such document.
However, delays in initiation of summary disciplinary proceedings under
this section will not impact an immediate suspension imposed pursuant
to paragraph (a) of this section. * * *
* * * * *
(2) In the case of a summary proceeding based upon a final order of
disbarment or suspension, or a resignation while a disciplinary
investigation or proceeding is pending (i.e., reciprocal discipline), a
certified copy of a judgment or order of discipline shall establish a
rebuttable presumption of the professional misconduct. Disciplinary
sanctions shall follow in such a proceeding unless the attorney can
rebut the presumption by demonstrating clear and convincing evidence
that:
* * * * *
Sec. 1003.104 [Amended]
8. Amend Sec. 1003.104(d) by removing the phrase ``the Inspector
General and, if appropriate, to the Federal Bureau of Investigation''
and adding in its place the phrase ``the Department of Homeland
Security or the U.S. Attorney, and if appropriate, to the Inspector
General, the Federal Bureau of Investigation, or other law enforcement
agency''.
9. Amend Sec. 1003.105 by:
a. Revising paragraph (a);
b. Revising paragraph (c)(3);
c. Adding paragraph (c)(4); and by
d. Revising paragraph (d)(2), to read as follows:
Sec. 1003.105 Notice of Intent to Discipline.
(a) Issuance of Notice to practitioner. (1) If, upon completion of
the preliminary inquiry, the Office of the General Counsel of EOIR
determines that sufficient prima facie evidence exists to warrant
charging a practitioner
[[Page 44188]]
with professional misconduct as set forth in Sec. 1003.102, it will
file with the Board and issue to the practitioner who was the subject
of the preliminary inquiry a Notice of Intent to Discipline. Service of
this notice will be made upon the practitioner by either certified mail
to his or her last known address, as defined in paragraph (a)(2) of
this section, or by personal delivery. Such notice shall contain a
statement of the charge(s), a copy of the preliminary inquiry report,
the proposed disciplinary sanctions to be imposed, the procedure for
filing an answer or requesting a hearing, and the mailing address and
telephone number of the Board. In summary disciplinary proceedings
brought pursuant to Sec. 1003.103(b), a preliminary inquiry report is
not required to be filed with the Notice of Intent to Discipline.
(2) For the purposes of this section, the last known address of a
practitioner is the practitioner's address as it appears in EOIR's case
management system if the practitioner is actively representing a party
before EOIR on the date that the Office of the General Counsel for EOIR
issues the Notice of Intent to Discipline. If the practitioner does not
have a matter pending before EOIR on the date of the issuance of a
Notice of Intent to Discipline, then the last known address for a
practitioner will be as follows:
(i) Attorneys in the United States: The attorney's address that is
on record with a state jurisdiction that licensed the attorney to
practice law.
(ii) Accredited representatives: The address of a recognized
organization with which the accredited representative is affiliated.
(iii) Accredited officials: The address of the embassy of the
foreign government that employs the accredited official.
(iv) All other practitioners: The address for the practitioner that
appears in EOIR's case management system for the most recent matter on
which the practitioner represented a party.
* * * * *
(c) * * *
(3) Request for hearing. The practitioner shall also state in the
answer whether he or she requests a hearing on the matter. If no
request for a hearing is made, the opportunity for a hearing will be
deemed waived. If a practitioner who is subject to summary disciplinary
proceedings pursuant to Sec. 1003.103(b) requests a hearing, he or she
must make a prima facie showing to an adjudicating official, as set
forth in Sec. 1003.106, in the answer demonstrating either that:
(i) He or she can rebut the presumption of professional misconduct
by establishing one or more of the exceptions set forth in Sec.
1003.103(b)(2)(i) through (iii); or
(ii) Mitigating factors exist and should be considered with regard
to the level of discipline to be imposed.
(4) Failure to make prima facie showing. Failure to make such a
prima facie showing with respect to summary disciplinary proceedings
pursuant to Sec. 1003.103(b) shall result in the denial of the request
for a hearing.
(d) * * *
(2) Upon such a default by the practitioner, the Office of the
General Counsel for EOIR shall submit to the Board proof of service of
the Notice of Intent to Discipline. The practitioner shall be precluded
thereafter from requesting a hearing on the matter. The Board shall
issue a final order adopting the proposed disciplinary sanctions in the
Notice of Intent to Discipline unless to do so would foster a tendency
toward inconsistent dispositions for comparable conduct or would
otherwise be unwarranted or not in the interests of justice. With the
exception of cases in which the Board has already imposed an immediate
suspension pursuant to Sec. 1003.103, any final order imposing
discipline shall not become effective sooner than 15 days from the date
of the order to provide the practitioner opportunity to comply with the
terms of such order, including, but not limited to, withdrawing from
any pending immigration matters and notifying immigration clients of
the imposition of any sanction.
10. Amend Sec. 1003.106 by:
a. Revising the section heading;
b. Revising the heading of paragraph (a);
c. Revising the first and second sentences of paragraph (a)(1)(ii),
d. Revising paragraphs (a)(1)(iii) and (a)(1)(iv);
e. Revising the first sentence of paragraph (a)(1)(v) introductory
text;
f. Revising paragraph (a)(2) introductory text;
g. Revising paragraph (a)(2)(ii); and by
h. Revising paragraphs (b) and (c).
The revisions read as follows:
Sec. 1003.106 Right to be heard and disposition.
(a) Right to be heard--(1) * * *
(ii) Except as provided in Sec. 1003.105(c)(3), upon the
practitioner's request for a hearing, the adjudicating official may
designate the time and place of the hearing with due regard to the
location of the practitioner's practice or residence, the convenience
of witnesses, and any other relevant factors. When designating the time
and place of a hearing, the adjudicating official shall provide for the
service of a notice of hearing, as the term ``service'' is defined in 8
CFR 1003.13, on the practitioner and the counsel for the government. *
* *
(iii) The practitioner may be represented by counsel at no expense
to the government. Counsel for the practitioner shall file a Notice of
Entry of Appearance on Form EOIR-28 in accordance with the procedures
set forth in this part. The practitioner shall have a reasonable
opportunity to examine and object to evidence presented by the
government, to present evidence on his or her own behalf, and to cross-
examine witnesses presented by the government.
(iv) In rendering a decision, the adjudicating official shall
consider the following: The complaint, the preliminary inquiry report,
the Notice of Intent to Discipline, the answer, any supporting
documents, and any other evidence, including pleadings, briefs, and
other materials. Counsel for the government shall bear the burden of
proving the grounds for disciplinary sanctions enumerated in the Notice
of Intent to Discipline by clear and convincing evidence.
(v) The record of proceedings, regardless of whether an immigration
judge or an administrative law judge is the adjudicating official,
shall conform to the requirements of 8 CFR part 1003, subpart C and 8
CFR 1240.9. * * *
* * * * *
(2) Failure to appear in proceedings. If the practitioner requests
a hearing as provided in section 1003.105(c)(3) but fails to appear,
the adjudicating official shall then proceed and decide the case in the
absence of the practitioner, in accordance with paragraph (b) of this
section, based upon the available record, including any additional
evidence or arguments presented by EOIR or DHS at the hearing. In such
a proceeding, the Office of the General Counsel of EOIR or the Office
of the Chief Counsel, United States Citizenship and Immigration
Services, DHS, shall submit to the adjudicating official proof of
service of the Notice of Intent to Discipline as well as the Notice of
the Hearing. The practitioner shall be precluded thereafter from
participating further in the proceedings. A final order of discipline
issued pursuant to this paragraph shall not be subject to further
review, except that the practitioner may file a motion to set aside the
order, with service of such motion on the Office of the General Counsel
of EOIR or the Office of the Chief Counsel, United States Citizenship
and Immigration Services, DHS, whichever office
[[Page 44189]]
initiated the disciplinary proceedings, provided:
* * * * *
(ii) His or her failure to appear was due to exceptional
circumstances (such as serious illness of the practitioner or death of
an immediate relative of the practitioner, but not including less
compelling circumstances) beyond the control of the practitioner.
(b) Decision. The adjudicating official shall consider the entire
record and, as soon as practicable, render a decision. If the
adjudicating official finds that one or more of the grounds for
disciplinary sanctions enumerated in the Notice of Intent to Discipline
have been established by clear and convincing evidence, he or she shall
rule that the disciplinary sanctions set forth in the Notice of Intent
to Discipline be adopted, modified, or otherwise amended. If the
adjudicating official determines that the practitioner should be
suspended, the time period for such suspension shall be specified. Any
grounds for disciplinary sanctions enumerated in the Notice of Intent
to Discipline that have not been established by clear and convincing
evidence shall be dismissed. The adjudicating official shall provide
for the service of a written decision or a memorandum summarizing an
oral decision, as the term ``service'' is defined in 8 CFR 1003.13, on
the practitioner and the counsel for the government. Except as provided
in paragraph (a)(2) of this section, the adjudicating official's
decision becomes final only upon waiver of appeal or expiration of the
time for appeal to the Board, whichever comes first, nor does it take
effect during the pendency of an appeal to the Board as provided in
Sec. 1003.6.
(c) Appeal. Upon the issuance of a decision by the adjudicating
official, either party or both parties may appeal to the Board to
conduct a review pursuant to Sec. 1003.1(d)(3). Parties must comply
with all pertinent provisions for appeals to the Board, including
provisions relating to forms and fees, as set forth in Part 1003, and
must use the Form EOIR-45. The decision of the Board is a final
administrative order as provided in Sec. 1003.1(d)(7), and shall be
served upon the practitioner as provided in 8 CFR 1003.1(f). With the
exception of cases in which the Board has already imposed an immediate
suspension pursuant to Sec. 1003.103, any final order imposing
discipline shall not become effective sooner than 15 days from the date
of the order to provide the practitioner opportunity to comply with the
terms of such order, including, but not limited to, withdrawing from
any pending immigration matters and notifying immigration clients of
the imposition of any sanction. A copy of the final administrative
order of the Board shall be served upon the Office of the General
Counsel of EOIR and the Office of Chief Counsel, United States
Citizenship and Immigration Services, DHS. If disciplinary sanctions
are imposed against a practitioner (other than a private censure), the
Board may require that notice of such sanctions be posted at the Board,
the Immigration Courts, or DHS for the period of time during which the
sanctions are in effect, or for any other period of time as determined
by the Board.
* * * * *
11. Amend Sec. 1003.107 by:
a. Removing the words ``clear, unequivocal, and convincing'' in the
first sentence in paragraph (b)(1) and adding in their place the words
``clear and convincing''; and by
b. Adding a new paragraph (c), to read as follows:
Sec. 1003.107 Reinstatement after expulsion or suspension.
* * * * *
(c) Appearance after reinstatement. A practitioner who has been
reinstated to practice by the Board must file a new Notice of Entry of
Appearance of Attorney or Representative in each case on the form
required by applicable rules and regulations, even if the reinstated
practitioner previously filed such a form in a proceeding before the
practitioner was disciplined.
PART 1292--REPRESENTATION AND APPEARANCES
12. The authority citation for part 1292 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1252b, 1362.
13. In Sec. 1292.1, remove paragraph (a)(6) and revise paragraph
(a)(2) introductory text, to read as follows:
Sec. 1292.1 Representation of others.
(a) * * *
(2) Law students and law graduates not yet admitted to the bar. A
law student who is enrolled in an accredited U.S. law school, or a
graduate of an accredited U.S. law school who is not yet admitted to
the bar, provided that:
* * * * *
Dated: July 10, 2008.
Michael B. Mukasey,
Attorney General.
[FR Doc. E8-17340 Filed 7-29-08; 8:45 am]
BILLING CODE 4410-30-P