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The leading Copyright |
[Federal Register: December 18, 2008 (Volume 73, Number 244)]
[Rules and Regulations]
[Page 76914-76927]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de08-7]
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DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1001, 1003, 1292
[Docket No. EOIR 160F; A.G. Order No. 3028-2008]
RIN 1125-AA59
Professional Conduct for Practitioners--Rules and Procedures, and
Representation and Appearances
AGENCY: Executive Office for Immigration Review, Justice.
ACTION: Final rule.
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SUMMARY: This final rule adopts, in part, the proposed changes to the
rules and procedures concerning the standards of representation and
professional conduct for practitioners who appear before the Executive
Office for Immigration Review (EOIR), which includes the immigration
judges and the Board of Immigration Appeals (Board). It also clarifies
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 practitioners who engage in criminal,
unethical, or unprofessional conduct, or in frivolous behavior before
EOIR. The final rule increases the number of grounds for discipline,
improves the clarity and uniformity of the existing rules, and
incorporates miscellaneous technical and procedural changes. The
changes herein are based upon the Attorney General's 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: Effective date: This rule is effective January 20, 2009.
FOR FURTHER INFORMATION CONTACT: John N. Blum, Acting General Counsel,
Executive Office for Immigration Review, 5107 Leesburg Pike, Suite
2600,
[[Page 76915]]
Falls Church, Virginia 22041, telephone (703) 305-0470 (not a toll-free
call).
SUPPLEMENTARY INFORMATION:
I. Public Participation
On July 30, 2008, the Attorney General published a proposed rule in
the Federal Register (73 FR 44178). The comment period ended September
29, 2008. Comments were received from four commenters, including a
local bar association, a national immigration lawyer association, and
two attorneys. Because some comments overlap, and three of the
commenters covered multiple topics, the comments are addressed by
topic, rather than by reference to each specific comment and commenter.
The provisions of the proposed rule on which the public did not comment
are adopted without change in this final rule. Additional technical
changes and changes made in response to public comments are discussed
below.
II. Regulatory Background
This rule amends 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
practice before the Executive Office for Immigration Review (EOIR).
This rule implements measures in response to the Attorney General's
assessment of EOIR with respect to EOIR's authority to discipline and
deter professional misconduct. The 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 of Immigration Appeals
(Board) and the immigration judges. The regulations concerning
representation and appearances were last promulgated on May 1, 1997 (62
FR 23634) (final rule). The regulations for the rules and procedures
concerning professional conduct were last promulgated as a final rule
on June 27, 2000 (65 FR 39513).
When it was part of the Department of Justice, the former
Immigration and Naturalization Service (INS) incorporated by reference
in its regulations EOIR's grounds for discipline and procedures for
disciplinary proceedings. Since then, the functions of the former INS
were transferred from the Department of Justice (Department) to the
Department of Homeland Security (DHS). DHS's immigration regulations
are contained in chapter I in 8 CFR, while 8 CFR chapter V now contains
the regulations governing EOIR. 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 as provided in 8 CFR 1003.106, regardless 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). Finally, both sets of rules provide for cross-discipline,
which allows EOIR to request that 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). Additional background information regarding
professional conduct rules for immigration proceedings can be found in
the proposed rule, 73 FR at 44178-180.
This 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, or
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.
The Attorney General completed a comprehensive review of EOIR's
responsibilities and programs, and determined that, among other things,
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 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 misconduct.
In part, the rule responds to the Attorney General's findings and
conclusions by adding substantive grounds of misconduct modeled on 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
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 more consistent with the ethical
standards applicable in most states.
This rule will 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 rule amends 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.
[[Page 76916]]
Additionally, this rule amends 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 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.
III. Responses to Comments
A. General Comments Concerning the Practitioner Discipline Regulations
Comment. One commenter raised concern about the ability of
immigration judges to use these rules ``to commence retaliatory
disciplinary proceedings against attorneys who complain of their * * *
practices.''
Response. The comment misunderstands EOIR's disciplinary procedural
structure. In 2000, the Department addressed the issue as to whether
immigration judges had the authority to initiate disciplinary
proceedings or impose disciplinary sanctions. See Professional Conduct
for Practitioners--Rules and Procedures, 65 FR 39513, 39520-39521 (June
27, 2000). Under the current regulations, which have been in place
since then, immigration judges have no authority to initiate
disciplinary proceedings against a particular attorney. Immigration
judges can file complaints about attorneys with EOIR's disciplinary
counsel, just as aliens, attorneys, or others involved in an
immigration proceeding may file such complaints. These complaints are
independently reviewed by EOIR's disciplinary counsel, who then
determines, after an independent investigation, whether to close the
complaint, informally resolve it, or initiate formal disciplinary
proceedings. If an attorney believes that an immigration judge
improperly filed a complaint as a retaliatory action, the attorney may
file a complaint against the immigration judge with the Office of the
Chief Immigration Judge. See www.usdoj.gov/eoir/sibpages/IJConduct.htm.
Comment. One organization commented that EOIR should adjust the
practitioner disciplinary procedures because EOIR is greatly expanding
the scope of its grounds for discipline. The commenter stated that up
until the proposed rule, EOIR mainly imposed discipline due to criminal
convictions or reciprocally based on discipline imposed by other
jurisdictions. The commenter was concerned that the current
disciplinary structure is not adequate for the new independent
disciplinary scheme that the proposed rule contemplated establishing.
Response. EOIR regularly cooperates with attorney disciplinary
agencies at the state and federal levels to impose reciprocal
discipline with regard to practitioners who have been suspended or
disbarred in other jurisdictions. EOIR also takes prompt action to
prohibit practitioners who have been convicted of serious crimes from
practicing before EOIR. However, EOIR's practitioner disciplinary
procedures were never intended to adjudicate matters involving only
reciprocal discipline or criminal convictions. At its inception 50
years ago, the practitioner disciplinary regulations provided ten
grounds for discipline that were original in nature. See 23 FR 2670,
2672-2673 (April 23, 1958). These regulations contemplated the
possibility that practitioners would be charged with misconduct arising
from practice before the Department, and that Department officials
would need to adjudicate these charges without reference to another
tribunal's findings as to misconduct, whether ethical or criminal in
nature. As reflected in several published cases, these practitioner
disciplinary procedures have been used to adjudicate original charges
of professional misconduct. See Matter of Sparrow, 20 I&N Dec. 920 (BIA
1994) (case involving both reciprocal and original charges); Matter of
De Anda, 17 I&N Dec. 54 (BIA, A.G. 1979); Matter of Solomon, 16 I&N
Dec. 388 (BIA, A.G. 1977); Matter of Koden, 15 I&N Dec. 739 (BIA 1974,
A.G. 1976). None of these cases reveals a deficiency in the procedures,
and these procedures were upheld by a federal court of appeals. See
Koden U.S. Dep't of Justice, 564 F.2d 228, 233-235 (7th Cir. 1977).
In 2000, the Department completely reviewed, revised, and expanded
the practitioner disciplinary procedures. 65 FR at 39523. These
regulations expressly created summary disciplinary procedures for cases
based on reciprocal discipline and criminal convictions, which are not
used in proceedings involving original charges of misconduct. See 8 CFR
1003.103-106. When the Department published these new procedures, it
also consolidated and added additional grounds for discipline. The
Department's major renovations in 2000 to the hearings and appeals
procedures for original charges of misconduct were intended to be
sufficient to adjudicate the eleven original grounds for discipline in
the current regulations. The addition of several more grounds for
discipline established in this final rule does not change the
sufficiency or adequacy of these existing procedures.
Comment. One commenter stated that EOIR should define ``accredited
representative'' and should issue identification cards to accredited
representatives so that immigration judges will be able to verify that
an individual appearing in court is accredited to practice before EOIR.
Response. The regulations at 8 CFR 1292.1 presently state that a
person entitled to representation before EOIR may be represented by,
among others, an accredited representative. This section cross-
references 8 CFR 1292.2, which provides detailed information concerning
accredited representatives. Because accredited representatives must go
through a special process to receive accreditation, the regulations
already provide more information about accredited representatives than
they do about attorneys or any other type of representative. Further, 8
CFR 1003.102(a)(2) specifies the compensation that accredited
representatives may receive for their services. Therefore, it is
unnecessary to further define the term ``accredited representative.''
The Department also declines, at this time, to issue identification
cards to accredited representatives. The regulations at 8 CFR 1292.2(d)
require EOIR to maintain a roster of accredited representatives. This
roster is available online at http:// www.usdoj.gov/eoir/statspub/
accreditedreproster.pdf. Immigration judges may easily refer to the
roster to determine if an individual is an accredited representative.
Thus, contrary to the commenter's concern, immigration judges are not
``forced to accept assertions of accredited representatives that they
are, in fact, accredited.''
Comment. All of the commenters proposed that the Department apply
the professional conduct regulations to government attorneys involved
in immigration proceedings. Three commenters asserted that the
practitioner disciplinary regulations should apply to both private
practitioners and DHS attorneys who practice before EOIR. Further, two
commenters indicated that immigration judge misconduct is a problem and
one of those commenters argued that rules governing the conduct of
immigration judges should be published contemporaneously with these
final rules.
Response. As an initial matter, the Department would note for
clarity that the ``rule'' of professional conduct for immigration
judges referenced by the
[[Page 76917]]
commenter was not a proposed rule, but a notice published in the
Federal Register seeking comment on draft ``Codes of Conduct for the
Immigration Judges and Board Members.'' 72 FR 35510 (June 28, 2007).
This notice did not include a process by which to discipline
immigration judges or Board Members. Rather, this notice recognized
certain ``canons'' of professional conduct. Id. at 35510-12. Attorneys
concerned with an immigration judge's conduct may follow the procedures
for filing a complaint regarding the conduct of an immigration judge.
See http://www.usdoj.gov/eoir/sibpages/IJConduct.htm.
In 2000, the Department addressed the reasons why government
attorneys, including immigration judges, are not subject to the same
process used for disciplining practitioners. See 65 FR at 39522. The
reasons stated in 2000 with respect to the current practitioner
disciplinary process remain valid, notwithstanding the fact that the
government is now represented in removal proceedings by attorneys
working for DHS rather than the former INS.
Like the former INS attorneys who were subject to investigation by
the Department's Inspector General and Office of Professional
Responsibility, DHS's Office of the Inspector General and the Office of
Professional Responsibility for Immigration and Customs Enforcement
investigate DHS attorneys. Further, DHS attorneys are also required to
comply with the Standards of Ethical Conduct for Employees of the
Executive Branch, found at 5 CFR part 2635, and other standards
applicable to government employees. In fact, DHS has adopted a formal
disciplinary process for its employees that provides similar hearing
and appeal rights as EOIR's practitioner disciplinary process,
including removal or suspension from employment. See 5 CFR 9701.601-
710. Moreover, applying this rule to DHS attorneys was not included in
the proposed rule, and cannot be adopted in this final rule in the
absence of prior notice and comment. Accordingly, the Department
declines to adopt the comments requesting contemporaneous publication
of the Code of Conduct for Immigration Judges and Board Members and a
rule addressing professional conduct of government attorneys.
Comment. Two commenters indicated that there is a perception that
an inherent conflict of interest exists when immigration judges
adjudicate practitioner disciplinary cases. One of the commenters
expressed the view that immigration judges do not have training in
attorney discipline matters, private practice experience, or sufficient
time to spare from their immigration case workload. The commenter
argued that EOIR should constitute disciplinary hearing panels composed
of private practice attorneys and members of the public to hear and
decide practitioner discipline cases.
Response. The use of immigration judges as adjudicators in
practitioner disciplinary cases was codified over twenty years ago, in
1987. See Executive Office for Immigration Review; Representation and
Appearances, 52 FR 24980 (July 2, 1987). In 2000, the Department
amended the practitioner disciplinary regulations to provide that both
immigration judges and administrative law judges could be assigned to
adjudicate practitioner disciplinary cases. When that final rule was
published, the Department gave a detailed explanation concerning the
use of immigration judges as adjudicating officials in practitioner
disciplinary cases. See 65 FR at 39515-16. That explanation remains
valid.
However, in recognition that these final rules significantly
increase the regulation of practitioner conduct, EOIR has chosen to
create a corps of adjudicating officials made up of immigration judges
and administrative law judges who will receive specialized training in
professional responsibility law, and who will hear and decide
practitioner disciplinary cases as part of their normal caseload.
Further, EOIR acknowledges the concern raised by the commenters and
notes that the current regulations require that an immigration judge
appointed to hear disciplinary cases is not the complainant and not one
whom the practitioner regularly appears before. 8 CFR
1003.106(a)(1)(i).
B. Section 1003.102--Grounds of Misconduct
1. Section 1003.102(e)--Reciprocal Discipline
This rule sought to amend the existing rules that only allow the
imposition of discipline where a practitioner resigns ``with an
admission of misconduct'' to allow ``the imposition of discipline on an
attorney who resigns while a disciplinary investigation or proceeding
is pending.'' 73 FR at 44180. No comments were received regarding this
part of the proposed rule. Accordingly, this rule will be adopted
without change.
2. Section 1003.102(k)--Previous Finding of Ineffective Assistance of
Counsel
Comment. Two organizations commented on the proposed amendment to 8
CFR 1003.102(k), which would expand the existing rule to sanction
practitioners based on a finding of ineffective assistance of counsel
by a federal court. One commenter questioned whether it was appropriate
for a finding of ineffective assistance of counsel to serve as a ground
for discipline. The commenter asserted that ineffective assistance of
counsel is normally raised by aliens when seeking reopening of
unfavorable decisions in their cases, and that because of this,
allegations of ineffective assistance of counsel are ``rampant.'' The
commenter thought that the circumstances under which ineffective
assistance of counsel is raised can put well-intentioned and competent
attorneys at risk of discipline. The other commenter appreciated that
the proposed rule would expand consideration of ineffective assistance
of counsel findings ``outside the parameters of the immigration
courtroom.'' This commenter also suggested that the rule be revised to
make clear that the ground of discipline must be based on a ``final
order'' finding ineffective assistance of counsel, either by an
immigration judge, the Board, or a federal court.
Response. The purpose of amending this rule is to permit EOIR to
impose disciplinary sanctions on practitioners who have been found to
have provided ineffective assistance of counsel in immigration
proceedings before EOIR, regardless of whether that finding of
ineffective assistance of counsel was made by an immigration judge, the
Board, or a federal court. Although one of the commenters thought that
practitioners would be placed at risk for discipline based on
allegations of ineffective assistance of counsel that are made by
aliens only seeking reopening of their immigration cases, EOIR has been
administering this ground for discipline since 2000 without
inappropriately disciplining a practitioner. As stated in the
supplemental information for the rule that proposed ineffective
assistance of counsel as a ground for discipline, an adjudicating
official may determine not to impose disciplinary sanctions
notwithstanding a finding of ineffective assistance of counsel in an
immigration proceeding. See Executive Office for Immigration Review;
Professional Conduct for Practitioners--Rules and Procedures, 63 FR
2901, 2902 (January
[[Page 76918]]
20, 1998) (proposed rule). Moreover, the EOIR disciplinary counsel does
not automatically initiate disciplinary proceedings based on a finding
of ineffective assistance of counsel. Rather, proceedings are initiated
based on EOIR disciplinary counsel's independent review of the matter.
Finally, if proceedings are initiated, practitioners receive a full and
fair opportunity to dispute the underlying finding of ineffective
assistance of counsel before being disciplined.
Another commenter agreed with the proposed amendment to this ground
for discipline; however, the commenter misunderstood the scope of this
amendment. The EOIR disciplinary process remains focused on
disciplining practitioners based on a finding of ineffective assistance
of counsel that occurred before EOIR in immigration proceedings (or
before DHS in the case of charges brought by the DHS disciplinary
counsel).
One commenter also suggested that EOIR limit discipline to matters
in which the finding of ineffective assistance of counsel was made in a
final order. We will not adopt this recommendation because the finding
of ineffective assistance of counsel is usually not located in a final
order by an immigration judge or the Board. This is because aliens most
commonly assert ineffective assistance of counsel as a basis for
getting their cases reopened. If an alien prevails in the ineffective
assistance of counsel claim, the adjudicator who issues this
determination will do so in an order that reopens the proceeding, and
such an order granting reopening is itself not a final order because
further proceedings will be held after the case is reopened. Therefore,
for all of the reasons stated above, the Department adopts the proposed
amendment to this ground for discipline as originally proposed.
3. Section 1003.102(l)--Failure To Appear in a Timely Manner
One commenter provided a comment agreeing with this change. No
other comments were received. Accordingly, this rule is adopted without
change.
4. Section 1003.102(m)--Assist in the Unauthorized Practice of Law
Comment. Two comments were received regarding section 1003.102(m).
One comment stated that this is ``one of the most valuable rules
proposed.'' The other commenter did not take a position on the rule,
but suggested revising the rule to include a ``knowingly'' mens rea
requirement to this ground of discipline that prohibits practitioners
from assisting in the unauthorized practice of law.
Response. The Department did not propose a modification to this
ground for discipline. This ground was only re-printed in the proposed
rule to delete the period at the end of this provision and add a semi-
colon. Accordingly, the Department declines to make any substantive
amendments to this rule, such as including the word ``knowingly.'' Such
a change is not necessary because practitioners should make certain
that any other practitioner they work with is authorized to practice
before EOIR. However, the Department believes that additional
clarification of what constitutes the practice of law would be helpful
to practitioners. Therefore, a clarifying statement will be added to
this ground for discipline that will state that the practice of law
before EOIR means engaging in practice or preparation as those terms
are defined in 8 CFR 1001.1(i) and (k).
5. Section 1003.102(n)--Conduct Prejudicial to the Administration of
Justice
Comment. Two commenters were concerned with the language used in
this proposed provision. One commenter believed it was too vague. The
other commenter, while acknowledging that this proposed provision is
based on ABA Model Rule 8.4(d), stated that this rule was extremely
broad and suggested that the Department narrow this ground by adding
text from the supplemental information in the proposed rule or from the
ABA's comments to Rule 8.4(d).
Response. This ground for discipline is based on ABA Model Rule
8.4(d). As such, it is a well-known ethical rule with which most
attorneys must comply whenever representing parties before a tribunal.
Therefore, we do not believe that additional language needs to be added
to the proposed rule. The Attorney General expects that EOIR's
disciplinary counsel, adjudicating officials, and the Board will
consider the ABA's comments to ABA Model Rule 8.4(d), and how this rule
has been applied in interpreting and applying this regulatory
provision, so that this new ground for discipline would not be applied
in a manner that is inconsistent with the prevailing interpretations
with which attorneys are already familiar. Therefore, we are adopting
the proposed rule without change.
6. Section 1003.102(o)--Competence
Comment. One commenter commended the addition of this provision,
which is based on ABA Model Rule 1.1. The commenter suggested that the
Department add additional text to the provision from the ABA's comments
1, 3, and 5 to Rule 1.1.
Response. As indicated in the proposed rule, this ground for
discipline uses text that is nearly identical to ABA Model Rule 1.1.
The proposed rule also included one sentence from the ABA's comment 5
to Rule 1.1. The Department has considered adding additional text to
this ground for discipline from the ABA's comments 1, 3, and 5 to Rule
1.1. However, the Department believes that the proposed rule, as
originally proposed, provides sufficient information for practitioners
to be on notice of their duty to represent their clients competently.
The Department's decision not to add additional text does not mean that
the ABA's comments 1, 3, and 5 are not relevant to interpreting this
provision. Because this ground for discipline is based on ABA Model
Rule 1.1, relevant ABA comments concerning Rule 1.1, and relevant
judicial interpretations, can be considered as an important aid in
interpreting this ground for discipline.
7. Section 1003.102(p)--Scope of Representation
Comment. One commenter was concerned by this provision because the
commenter believed that the provision would interfere with retainer
agreements between attorneys and their clients, which are traditionally
governed by state law. The commenter agreed that immigration judges
should have a role in determining whether a practitioner can withdraw
from a case; however, the commenter thought that this provision would
require practitioners to continue to represent a client even when there
is a conflict of interest. The commenter urged the Department to adopt
standards governing whether immigration judges should permit the
withdrawal of practitioners from cases. Finally, the commenter
suggested that the Department permit limited appearances and allow
practitioners to withdraw from cases in which clients have failed to
pay fees. Another commenter views this change as ``an excellent
proposal'' but suggests that the rule require clear contracts between
attorneys and clients.
Response. Upon review, the Department has decided to remove the
text from the proposed provision that is not based on ABA Model Rule
1.2(a) and add additional text from ABA Model Rule 1.2(a) concerning a
practitioner's ability to ``take such action on behalf of the client as
is impliedly authorized to carry out the representation.'' The
Department is
[[Page 76919]]
making this change because this provision, which involves the scope of
representation, should not include text discussing the withdrawal or
the termination of employment of practitioners. The commenter's
suggestion that the Department adopt standards governing whether
immigration judges should permit the withdrawal of practitioners is
outside the scope of this rule. This rule only involves practitioner
disciplinary matters and does not include proposed amendments to
procedures in immigration proceedings, such as 8 CFR 1003.17. Likewise,
the suggestion that the Department permit limited appearances is an
issue involving immigration proceedings that is not appropriately
addressed in this final rule.
8. Section 1003.102(q)--Diligence
Comment. One commenter noted appreciation for this proposal but
suggested that the Department add a good cause exception to the
requirement that practitioners act with diligence and promptness. The
commenter stated that there may always be unforeseen emergencies that
occur. The commenter also suggested that the Department permit nunc pro
tunc filings in immigration cases for good cause shown.
Response. The inclusion in this provision of a good cause exception
is unnecessary. This provision requires ``reasonable'' diligence and
promptness. Therefore, practitioners will not be expected to anticipate
every possible contingency, such as a truly unforeseen emergency, in
order to avoid discipline under this rule. However, practitioners
should make an effort to prepare for foreseeable exigencies. As stated
in response to a previous comment, this rule only involves practitioner
disciplinary matters and does not include proposed amendments to
procedures in immigration proceedings. Therefore, the Department will
not adopt, as part of this final rule, a provision that permits late
filings if there is good cause.
9. Section 1003.102(r)--Communication
Comment. Two commenters stated that this provision's requirement
that practitioners communicate with aliens in their native language
would be unduly burdensome. One commenter believes that the rule would
transfer the expense of translation services from aliens to
practitioners. Another commenter believes that the requirements in this
provision would make it difficult for aliens who speak unusual foreign
languages to obtain representation. The commenter asserted that aliens
often rely on friends and family to translate for them, and
practitioners should not be required to ensure that those translations
are accurate. One commenter suggested that this provision should only
require practitioners to make a diligent and reasonable effort to
communicate in the alien's language. Finally, one commenter was
concerned that the provision would require practitioners to locate
their clients to communicate with them; the commenter suggested that
the rule only require communication using the contact information
provided to the practitioner from the client.
Response. The Department accepts the suggestions from the
commenters and the final version of this provision has been modified to
ensure that practitioners are not required to provide all translation
services for their clients. However, practitioners must make reasonable
efforts to communicate with clients in a language that the client
understands. Further, the Department agrees that practitioners should
not have to locate their clients and should be able to rely on the
contact information provided by their clients. However, if a
practitioner cannot locate his or her client, the practitioner is
responsible for informing EOIR that the practitioner is unable to
contact his or her client.
10. Section 1003.102(s)--Candor Toward the Tribunal
Comment. One commenter took issue with the explanation for this
rule in the supplemental information and requested that the rule make
clear that ``the duty of the lawyer is only to make reasonable
disclosure of contrary authority known to him,'' not to assist DHS in
preparing its brief against the lawyer's client.
Response. This provision is extremely narrow and will not require
practitioners to seek out legal authority that is contrary to their
client's cases just to disclose this information to EOIR. This
provision only applies to controlling legal authority that is directly
contrary to the client's position when this controlling legal authority
is already known to the practitioner and the other party did not
provide it to EOIR. In this regard, the commenter is correct that this
rule does not view an alien's attorney as having a duty to also conduct
research for the opposing party.
11. Section 1003.102(t)--Notice of Entry of Appearance
Comment. One commenter thought that the proposed provision was too
broad because it subjects practitioners who provide pro bono services
to discipline if they do not sign pleadings or submit a Form EOIR-27 or
EOIR-28. The commenter suggested that disciplinary sanctions only be
imposed when filings demonstrate a lack of competence or preparation,
or the practitioner has undertaken ``full client services.'' Another
commenter approved of this change, but suggested that pro se aliens be
provided notice of this requirement in their own language and that
immigration judges inform all who appear before the court of the
requirement.
Response. The Department believes that all practitioners should
submit Forms EOIR-27 and EOIR-28, and sign all filings made with EOIR,
in cases where practitioners engage in ``practice'' or ``preparation''
as those words are defined in 8 CFR 1001.1(i) and (k). It is
appropriate to require practitioners who engage in ``practice'' or
``preparation,'' whether it is for a fee or on a pro bono basis, to
enter a notice of appearance and sign any filings submitted to EOIR. As
stated in the supplemental information to the proposed rule, this
provision is meant to advance the level of professional conduct in
immigration matters and foster increased transparency in the client-
practitioner relationship. Any practitioner who accepts responsibility
for rendering immigration-related services to a client should be held
accountable for his or her own actions, including the loss of the
privilege of practice before EOIR, when such conduct fails to meet the
minimum standards of professional conduct in 8 CFR 1003.102. It is
difficult for EOIR to enforce those standards when practitioners fail
to enter a notice of appearance or sign filings made with EOIR.
However, in an effort to ensure clarity of this ground for discipline,
a sentence will be added to this provision that makes it clear that a
notice of appearance must be submitted and filings signed in all cases
where practitioners engage in ``practice'' or ``preparation.'' If a
practitioner provides pro bono services that do not meet these
definitions, then a notice of appearance is not necessary.
As for the suggestions made by the second commenter, the Department
declines to codify in the regulations a rule that requires notice to
pro se aliens or anyone appearing before an immigration judge of an
attorney's obligation to enter a Notice of Appearance. The scope of
this rule is to provide notice to attorneys of their responsibilities
when engaging in practice and preparation before EOIR and to provide
grounds for discipline when an attorney fails to carry through on his
or her responsibilities.
[[Page 76920]]
12. Section 1003.102(u)--Repeated Filings Indicating a Substantial
Failure to Competently and Diligently Represent the Client
Comment. One commenter stated that the proposed rule fails to
acknowledge that boilerplate language is sometimes appropriate where
used in briefs where cases present common issues of law, analysis, and
argument. The commenter was concerned that the proposed rule would
punish the repeated use of briefing materials regardless of the
material's relevance to the case at hand. The commenter proposed
limiting the proposed rule's effect to filings that reflect
incorporation of incorrect or irrelevant material. Another commenter
agrees with this change, but questions how the ``repeated filings''
will be tracked such that the rule will be enforceable.
Response. The rule, as written, is sufficient to meet the concerns
of the first commenter and is therefore adopted as the final rule. The
rule makes it clear that conduct that will lead to sanctions only
includes filings that use boilerplate language that reflect little or
no attention to the specific factual or legal issues in a case and
thereby show a lack of competence or diligence by the practitioner. As
stated in the supplemental information to the proposed rule, EOIR seeks
to deter practitioners from filing briefs that provide no recitation of
the specific facts in the case and fail to explain how the cited law in
the brief applies to the facts of the case. Therefore, this rule is
sufficiently circumscribed to ensure that a practitioner's use of a
legal argument in one case, which is copied from the practitioner's
brief in another case, will not subject the practitioner to sanctions
unless the argument fails to connect the legal issues raised in the
brief with the specific facts in the case in a manner that shows a lack
of competence and diligence.
As for the enforceability of the rule, the proposed rule explained
that the Board has already experienced these situations. 73 FR at
44183. In light of this experience, the Board has already developed the
means to identify cases where the same attorney is filing boilerplate
briefs. Immigration judges, on the other hand, may be able to identify
instances of concern based on their ongoing interaction with the
practitioners who appear before them.
C. Section 1003.103--Immediate Suspension and Summary Disciplinary
Proceedings
Comment. One commenter stated that a petition to immediately
suspend a practitioner should not be filed until a final order is
issued suspending, disbarring, or criminally convicting the
practitioner in another jurisdiction.
Response. The regulations currently permit the imposition of an
immediate suspension of a practitioner who has been suspended or
disbarred on an interim basis. The proposed rule sought to clarify this
authority; however, the proposed rule did not seek to broaden or change
it. It is appropriate to immediately suspend a practitioner based on an
interim suspension from a state licensing authority or a Federal court
pending the issuance of a final order because any practitioner who is
under a suspension from another jurisdiction does not meet the
definition of an ``attorney'' under 8 CFR 1001.1(f). Such a
practitioner is not qualified to practice before EOIR under 8 CFR
1292.1(a)(1). Further, it is beyond argument that it is appropriate to
immediately suspend practitioners who have been convicted of serious
crimes. The regulations protect practitioners because they require that
all criminal appeals be completed before EOIR will issue a final order
imposing a suspension or expulsion on a criminally convicted
practitioner. See 8 CFR 1003.103(b).
Comment. One commenter was concerned that EOIR did not have a
provision that would permit it to vacate an immediate suspension order
imposed on a practitioner who later has an underlying state bar
suspension vacated.
Response. The regulations expressly provide that upon a showing of
good cause, the Board may set aside an immediate suspension if it is in
the interests of justice to do so. 8 CFR 1003.103(a)(2). If an
immediate suspension was solely predicated upon a state bar suspension
that was vacated, it would be in the interests of justice for the Board
to set aside its immediate suspension order.
Comment. One organization disagreed with the proposed change in the
standard of proof in practitioner disciplinary proceedings from
``clear, unequivocal, and convincing evidence'' to ``clear and
convincing evidence.'' The commenter stated that removing
``unequivocal'' makes lawyers more vulnerable to discipline without
providing a corresponding benefit to the justice system and indicated
that the standard of proof in practitioner disciplinary cases should
not mirror those in removal proceedings.
Response. The proposed rule indicated the Department's intention to
change the standard of proof in practitioner disciplinary cases to
clear and convincing evidence because this is now the standard of proof
used in removal proceedings adjudicated by the Board and immigration
judges. This is appropriate given the reason why ``unequivocal'' was
first adopted as part of the standard of proof in practitioner
disciplinary proceedings. See Matter of Koden, 15 I&N Dec. 739, 748
(BIA 1974, A.G. 1976). In Koden, the Board decided that the standard of
proof should be clear, convincing, and unequivocal evidence, rather
than clear and convincing evidence as argued by the respondent, because
many other jurisdictions used ``unequivocal'' as part of their
disciplinary standard, and also because the Board and other immigration
adjudicators were already familiar with applying the clear, convincing,
and unequivocal evidence standard as that was the standard applicable
in deportation proceedings. See id. It is appropriate for the standard
of proof in practitioner disciplinary cases to be adjusted to the clear
and convincing standard because that is now the standard that the ABA
recommends for all jurisdictions to adopt in disciplinary cases, see
Model Rules for Lawyer Disciplinary Enforcement R. 18 (2002), and also
because that is the standard the Board and immigration judges now apply
in removal proceedings. The latter reason is supported by both Koden
and the regulations at 8 CFR 1003.106(a)(1)(v), which state:
``[d]isciplinary proceedings shall be conducted in the same manner as
Immigration Court proceedings as is appropriate . * * *'' Further,
while the concerns raised by the commenter were presumably directed at
a reduction of the burden the government will bear in proving charges
of misconduct, it is important to note that practitioners also receive
a benefit to the change in the standard of proof. Practitioners have a
reduced burden of proving affirmative defenses and proving that they
are morally and professionally fit to be reinstated after being
disciplined. See 8 CFR 1003.103(b)(2); 1003.105(a)(2); 1003.107(a)(1).
Comment. One commenter suggested that the regulations concerning
reciprocal discipline be revised so that reciprocal discipline imposed
by the Board will run concurrently with the discipline imposed by the
practitioner's state bar. The commenter believed that the proposed
revisions to 8 CFR 1003.103 would cause practitioners to be suspended
or disbarred for periods of time that are different than that imposed
by the state bar without any basis or finding as to why that result is
appropriate.
Response. EOIR attempts to ensure in reciprocal disciplinary cases
that a
[[Page 76921]]
suspension or expulsion before EOIR will be as contemporaneous as
possible with discipline imposed by state bars. The regulations at 8
CFR 1003.103(a) permit the Board to impose an immediate suspension on a
practitioner who has been suspended or disbarred, and the time served
during the immediate suspension can be credited toward the term of
suspension or expulsion in the final order. Id. However, the Board
cannot issue an immediate suspension order against a practitioner
contemporaneously with a state bar order of suspension or disbarment
unless the practitioner complies with 8 CFR 1003.103(c) and informs
EOIR of the suspension or disbarment in a timely fashion. In cases
where practitioners fail to inform EOIR of state bar discipline, EOIR
will have no alternative but to impose discipline at a later date after
learning of the discipline. Even though Board precedent establishes
that identical or comparable discipline is generally to be imposed in
reciprocal disciplinary matters, see Matter of Truong, 24 I&N Dec. 52,
55 (BIA 2006); Matter of Ramos, 23 I&N Dec. 843, 848 (BIA 2005); Matter
of Gadda, 23 I&N Dec. 645, 649 (BIA 2003), EOIR will not reward a
practitioner's failure to comply with his or her duty to timely inform
EOIR of state bar discipline by shortening the length of the reciprocal
discipline imposed.
Further, while the Board generally subscribes to the concept of
identical or comparable reciprocal discipline, there have been
circumstances where the Board has imposed non-identical reciprocal
discipline or denied reinstatement to a practitioner who has since been
reinstated to practice before his state bar. See Matter of Krivonos, 24
I&N Dec. 292, 293 (BIA 2007) (denying reinstatement to practitioner who
had been convicted of immigration-related fraud even though
practitioner was reinstated by the state bar); Matter of Jean-Joseph,
24 I&N Dec. 295 (BIA 2007) (suspending practitioner for double the
length of state bar suspension because practitioner violated the
Board's immediate suspension order). Therefore, while identical or
comparable reciprocal discipline is generally employed by the Board,
the Board must have the flexibility to respond to the facts and
circumstances presented in each case.
Comment. One commenter suggested that the rule allowing for public
postings of immediate suspensions require that such postings be placed
in the waiting rooms of the immigration courts.
Response. The regulatory language specifically states that ``the
Board may require that notice of such suspension be posted at the
Board, the Immigration Courts, or the DHS.'' In all immediate
suspension orders issued by the Board to date, the Board has included a
requirement that the immediate suspension be posted in a public area.
In addition, such information is accessible to the public online at
http://www.usdoj.gov/eoir/profcond/chart.htm.
D. Section 1003.105--Notice of Intent To Discipline and Section
1003.106--Hearing and Disposition
Comment. One commenter suggested that a Notice of Intent to
Discipline should only be issued when there is a preliminary finding
that the charges of misconduct could be sustained on clear and
convincing evidence.
Response. This comment involves an existing regulation that was not
subject to amendment in the proposed rule and, therefore, is outside
the scope of the proposed rule. In 2000, the practitioner disciplinary
regulations were amended to provide that a Notice of Intent to
Discipline would only be issued when there is sufficient prima facie
evidence to warrant charging a practitioner with misconduct. 8 CFR
1003.105(a). However, those charges would have to be proven by clear
and convincing evidence. 8 CFR 1003.106(a)(1)(iv). Therefore, implicit
in the filing of all charges is the belief by the EOIR disciplinary
counsel that the charges can be proven by clear and convincing
evidence.
Comment. One commenter took issue with the proposal to limit the
circumstances under which a preliminary inquiry report will be served
with a Notice of Intent to Discipline. The commenter understood the
proposal to mean that the practitioner will no longer be informed of
the basis for the charge of disciplinary action.
Response. The supplemental information and language of the proposed
rule clearly state that this limitation applies only in summary
proceedings because those proceedings will always be brought as a
result of a disciplinary decision issued by a state licensing authority
or a federal court, or a criminal conviction which will be set forth in
the Notice of Intent to Discipline itself. Thus, a preliminary inquiry
report would do nothing but repeat the basis of the charges already
contained in the Notice. Accordingly, this final rule adopts this
proposed rule without change.
Comment. One commenter disagreed with the proposed language for
limiting a practitioner's eligibility for a hearing where the
practitioner is subject to summary disciplinary proceedings.
Response. In light of the comment and upon further consideration of
the proposed change to 8 CFR 1003.105 concerning the availability of
in-person hearings in summary disciplinary proceedings, the Department
has decided not to adopt the proposed language. Rather, the Department
will codify in the regulations the prevailing standard in Board
precedent concerning evidentiary hearings in summary discipline cases.
In Matter of Ramos, 23 I&N Dec. 843, 848 (BIA 2005), the Board held
that in summary disciplinary proceedings, a practitioner must show that
there is a material issue of fact in dispute that necessitates an
evidentiary hearing. Id. Therefore, the final regulations reflect this
standard. The Department has also decided that this provision should
appear in 8 CFR Sec. 1003.106 because it relates to a practitioner's
right to a hearing. 8 CFR Sec. 1003.105 involves filing Notices of
Intent to Discipline and answers to those notices. Therefore, it is
more appropriate for this provision to be located in the section
related to disciplinary hearings.
IV. Technical Amendments to Regulations
This final rule also includes technical changes to 8 CFR 1003.101-
108 that were not included in the proposed rule. In 8 CFR 1003.101,
1003.103, 1003.104-105, and 1003.107, the words ``Immigration and
Naturalization Service,'' ``the Service'' and ``the Office of the
General Counsel of the Service'' are being replaced with the term
``DHS,'' which is defined at 8 CFR 1001.1(w). As discussed above, since
the promulgation of the final rule concerning the practitioner
disciplinary process in June of 2000, the functions of the former
Immigration and Naturalization Service (INS) were transferred from the
Department to DHS. These changes reflect the creation of DHS and the
transfer of the former INS's functions.
The definition of the term ``practice'' in 8 CFR 1001.101(i) is
being updated to reflect the fact that immigration judges, and not
``officers of the Service,'' are the adjudicators at the hearing level
in immigration proceedings before EOIR. The definition has been
unchanged since its adoption nearly forty years ago. See 34 FR 12213
(July 24, 1969). At that time, INS officers held hearings in
immigration cases and the Board decided appeals from INS's decisions.
However, those INS officers eventually became immigration judges
employed by EOIR. Therefore, the Department is updating the definition
to remove
[[Page 76922]]
reference to the ``Service'' and ``officer of the Service,'' and is
replacing them with the terms ``DHS'' and ``immigration judge.''
In 8 CFR 1003.103-108, the term ``Office of the General Counsel of
EOIR'' is being replaced with the term ``EOIR disciplinary counsel'' as
it is used in 8 CFR 1003.0(e)(2)(iii). This change is made to more
accurately reflect EOIR's practice of assigning an attorney within the
Office of the General Counsel to serve as the chief prosecutor for
practitioner disciplinary matters. The EOIR disciplinary counsel is
responsible for the day-to-day management of the disciplinary program
for attorneys and accredited representatives, and investigates
allegations of misconduct against practitioners, including referrals
from EOIR's anti-fraud officer concerning ``instances of fraud,
misrepresentation, or abuse pertaining to an attorney or accredited
representative.'' 8 CFR 1003.0(e)(1), (2)(iii). The EOIR disciplinary
counsel determines when to dismiss complaints against practitioners,
informally resolve those complaints, or initiate disciplinary
proceedings.
The Department has also made technical changes to 8 CFR 1003.105-
106 to replace the terms ``Office of the General Counsel for EOIR'' and
``Office of the General Counsel of the Service'' with ``counsel for the
government.'' These changes are made to the provisions that relate
directly to the litigation of practitioner disciplinary cases. Finally,
8 CFR 1003.106(a)(1)(iii) is being amended to clarify that both parties
to a practitioner disciplinary case, and not just the practitioner,
have the right to examine and object to evidence presented by the other
party, to present evidence, and to cross-examine witnesses presented by
the other party. Further, an additional sentence is being added to this
provision to indicate that if a practitioner files an answer to the
Notice of Intent to Discipline but does not request a hearing, the
parties have the right to submit briefs and evidence to support or
refute any of the charges or affirmative defenses.
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.
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 recordkeeping 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.
0
For the reasons set forth in the preamble, parts 1001, 1003, and 1292
of title 8 of the Code of Federal Regulations are amended as follows:
PART 1001--DEFINITIONS
0
1. The authority citation for part 1001 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103.
0
2. Amend Sec. 1001.1 to revise paragraphs (f) and (i) 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.
* * * * *
(i) The term practice means the act or acts of any person appearing
in any case, either in person or through the preparation or filing of
any brief or other document, paper, application, or petition on behalf
of another person or client before or with DHS, or any immigration
judge, or the Board.
* * * * *
PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
0
3. The authority citation for part 1003 continues to read as follows:
Authority: 5 U.S.C. 301; 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.
[[Page 76923]]
0
4. 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
Sec. 1003.101 [Amended]
0
5. Amend Sec. 1003.101 by:
0
a. Removing from paragraph (a)(1) the words ``Immigration and
Naturalization Service (the Service)'' and adding in its place ``DHS'';
0
b. Removing from paragraph (a)(2) the words ``the Service'' and adding
in its place ``DHS'';
0
c. Removing from paragraph (b) the words ``the Service'' and adding in
its place ``DHS''.
0
6. Amend Sec. 1003.102 by:
0
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)'';
0
b. Revising paragraphs (e), (k), (l), and (m); and by
0
c. Adding paragraphs (n) through (t), 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. The practice of law before EOIR means
engaging in practice or preparation as those terms are defined in
Sec. Sec. 1001.1(i) and (k);
(n) Engages in conduct that is prejudicial to the administration of
justice or undermines the integrity of the adjudicative process.
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;
(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 fails to consult with the client as to
the means by which they are to be pursued, in accordance with paragraph
(r) of this section. A practitioner may take such action on behalf of
the client as is impliedly authorized to carry out the representation;
(q) Fails to act with reasonable diligence and promptness in
representing a client.
(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 take reasonable steps to communicate with the
client in a language that the client understands. A practitioner is
only under the obligation to attempt to communicate with his or her
client using addresses or phone numbers known to the practitioner. 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 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 engaged in practice or preparation as those terms are
defined in Sec. Sec. 1001.1(i) and (k), 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.
* * * * *
0
7. Amend Sec. 1003.103 by:
0
a. Revising the first sentence in paragraph (a)(1);
0
b. Revising the first and second sentences in paragraph (a)(2);
0
c. Adding a new sentence after the second sentence in paragraph (a)(2);
0
d. Revising the first and second sentences in paragraph (b)
introductory text;
[[Page 76924]]
0
e. Revising paragraph (b)(2) introductory text; and by
0
f. Revising the first sentence of paragraph (c).
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 EOIR disciplinary counsel 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. A copy of the petition shall be forwarded to DHS,
which may submit a written request to the Board that entry of any order
immediately suspending a practitioner before the Board or the
Immigration Courts also apply to the practitioner's authority to
practice before DHS. Proof of service on the practitioner of DHS's
request to broaden the scope of any immediate suspension must be filed
with the Board.
(2) Immediate suspension. Upon the filing of a petition for
immediate suspension by the EOIR disciplinary counsel, together with a
certified copy of a court record finding that a practitioner has been
found guilty of, or pleaded guilty or nolo contendere to, a serious
crime, or has been disciplined or has resigned, as described in
paragraph (a)(1) of this section, the Board shall forthwith enter an
order immediately suspending the practitioner from practice before the
Board, the Immigration Courts, and/or DHS, notwithstanding the pendency
of an appeal, if any, of the underlying disciplinary proceeding,
pending final disposition of a summary disciplinary proceeding as
provided in paragraph (b) of this section. Such immediate suspension
will continue until imposition of a final administrative decision. 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 DHS. * * *
* * * * *
(b) Summary disciplinary proceedings. The EOIR disciplinary counsel
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:
* * * * *
(c) Duty of practitioner to notify EOIR of conviction or
discipline. 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 who has been disbarred or suspended 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, must notify the EOIR disciplinary counsel of any such conviction
or disciplinary action within 30 days of the issuance of the initial
order, even if an appeal of the conviction or discipline is pending.* *
*
* * * * *
0
8. Amend Sec. 1003.104 by:
0
a. Revising paragraph (a);
0
c. Revising the first, third, and fourth sentences in paragraph (b);
0
d. Revising paragraph (c); and by
0
e. Revising paragraph (d), to read as follows:
Sec. 1003.104 Referral of Complaints
(a) Filing complaints--(1) Practitioners authorized to practice
before the Board and the Immigration Courts. Complaints of criminal,
unethical, or unprofessional conduct, or of frivolous behavior by a
practitioner who is authorized to practice before the Board and the
Immigration Courts shall be filed with the EOIR disciplinary counsel.
Disciplinary complaints must be submitted in writing and must state in
detail the information that supports the basis for the complaint,
including, but not limited to, the names and addresses of the
complainant and the practitioner, the date(s) of the conduct or
behavior, the nature of the conduct or behavior, the individuals
involved, the harm or damages sustained by the complainant, and any
other relevant information. Any individual may file a complaint with
the EOIR disciplinary counsel using the Form EOIR-44. The EOIR
disciplinary counsel shall notify DHS of any disciplinary complaint
that pertains, in whole or part, to a matter before DHS.
(2) Practitioners authorized to practice before DHS. Complaints of
criminal, unethical, or unprofessional conduct, or frivolous behavior
by a practitioner who is authorized to practice before DHS shall be
filed with DHS pursuant to the procedures set forth in Sec. 292.3(d)
of this chapter.
(b) Preliminary inquiry. Upon receipt of a disciplinary complaint
or on its own initiative, the EOIR disciplinary counsel will initiate a
preliminary inquiry. * * * If the EOIR disciplinary counsel determines
that a complaint is without merit, no further action will be taken. The
EOIR disciplinary counsel may, in its discretion, close a preliminary
inquiry if the complainant fails to comply with reasonable requests for
assistance, information, or documentation. * * *
(c) Resolution reached prior to the issuance of a Notice of Intent
to Discipline. The EOIR disciplinary counsel, in its discretion, may
issue warning letters and admonitions, and may enter into agreements in
lieu of discipline, prior to the issuance of a Notice of Intent to
Discipline.
(d) Referral of complaints of criminal conduct. If the EOIR
disciplinary counsel receives credible information or allegations that
a practitioner has engaged in criminal conduct, the EOIR disciplinary
counsel shall refer the matter to DHS or the appropriate United States
Attorney and, if appropriate, to the Inspector General, the Federal
Bureau of Investigation, or other law enforcement agency. In such
cases, in making the decision to pursue
[[Page 76925]]
disciplinary sanctions, the EOIR disciplinary counsel shall coordinate
in advance with the appropriate investigative and prosecutorial
authorities within the Department to ensure that neither the
disciplinary process nor criminal prosecutions are jeopardized.
* * * * *
0
9. Amend Sec. 1003.105 by:
0
a. Revising paragraph (a);
0
b. Revising the first and second sentences of paragraph (b);
0
c. Revising the third sentence of paragraph (c)(1); and by
0
d. Revising paragraph (d)(2) introductory text, 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 EOIR disciplinary counsel determines that
sufficient prima facie evidence exists to warrant charging a
practitioner with professional misconduct as set forth in Sec.
1003.102, he or she 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 EOIR disciplinary counsel 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.
(b) Copy of Notice to DHS; reciprocity of disciplinary sanctions. A
copy of the Notice of intent to Discipline shall be forwarded to DHS.
DHS may submit a written request to the Board or the adjudicating
official requesting that any discipline imposed upon a practitioner
which restricts his or her authority to practice before the Board or
the Immigration Courts also apply to the practitioner's authority to
practice before DHS. * * *
(c) * * *
(1) * * * A copy of the answer and any such motion shall be served
by the practitioner on the counsel for the government.
* * * * *
(d) * * *
* * * * *
(2) Upon such a default by the practitioner, the counsel for the
government 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. A practitioner may file a motion to set aside a final
order of discipline issued pursuant to this paragraph, with service of
such motion on the EOIR disciplinary counsel, provided:
* * * * *
0
10. Amend Sec. 1003.106 by:
0
a. Revising the section heading to read as set forth below;
0
b. Revising the heading of paragraph (a);
0
c. Redesignating paragraphs (a)(1) and (a)(2) as paragraphs (a)(2) and
(a)(3);
0
d. Adding a new paragraph (a)(1);
0
e. Revising the first and second sentences of newly redesignated
paragraph (a)(2)(ii),
0
f. Revising paragraphs (a)(2)(iii) and (a)(2)(iv);
0
g. Revising the first sentence of paragraph (a)(2)(v) introductory
text;
0
h. Revising paragraph (a)(3) introductory text;
0
i. Revising paragraph (a)(3)(ii);
0
j. Revising paragraphs (b) and (c); and by
0
k. Revising the first and third sentences of paragraph (d).
The revisions read as follows:
Sec. 1003.106 Right to be heard and disposition.
(a) Right to be heard--(1) Summary disciplinary proceedings. 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 the Board in his or her answer that there is a
material issue of fact in dispute with regard to the basis for summary
disciplinary proceedings, or with one or more of the exceptions set
forth in Sec. 1003.103(b)(2)(i)-(iii). If the Board determines that
there is a material issue of fact in dispute with regard to the basis
for summary disciplinary proceedings, or with one or more of the
exceptions set forth in Sec. 1003.103(b)(2)(i)-(iii), then the Board
shall refer the case to the Chief Immigration Judge for the appointment
of an adjudicating official. Failure to make such a prima facie showing
shall result in the denial of a request for a hearing. The Board shall
retain jurisdiction over the case and issue a final order.
(2) * * *
(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
[[Page 76926]]
forth in this part. Each party shall have a reasonable opportunity to
examine and object to evidence presented by the other party, to present
evidence on his or her own behalf, and to cross-examine witnesses
presented by the other party. If a practitioner files an answer but
does not request a hearing, then the adjudicating official shall
provide the parties with the opportunity to submit briefs and evidence
to support or refute any of the charges or affirmative defenses.
(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. * * *
* * * * *
(3) 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 the counsel for the government at
the hearing. In such a proceeding, the counsel for the government 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 counsel for the government, 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 counsel for the government.
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.
(d) Referral. In addition to, or in lieu of, initiating
disciplinary proceedings against a practitioner, the EOIR disciplinary
counsel may notify an appropriate Federal or state disciplinary or
regulatory authority of any complaint filed against a practitioner. * *
* In addition, the EOIR disciplinary counsel shall transmit notice of
all public discipline imposed under this rule to the National Lawyer
Regulatory Data Bank maintained by the American Bar Association.
* * * * *
0
11. Amend Sec. 1003.107 by:
0
a. Revising the second and third sentences of paragraph (b)
introductory text;
0
b. Revising paragraph (b)(1); and by
0
c. Adding a new paragraph (c), to read as follows:
Sec. 1003.107 Reinstatement after expulsion or suspension.
* * * * *
(b) Petition for reinstatement. * * * A copy of such a petition
shall be served on the EOIR disciplinary counsel. In matters in which
the practitioner was ordered expelled or suspended from practice before
DHS, a copy of such petition shall be served on DHS.
(1) The practitioner shall have the burden of demonstrating by
clear and convincing evidence that he or she possess the moral and
professional qualifications required to appear before the Board and the
Immigration Courts or DHS, or before all three authorities, and that
his or her reinstatement will not be detrimental to the administration
of justice. The EOIR disciplinary counsel and, in matters in which the
practitioner was ordered expelled or suspended from practice before
DHS, DHS may reply within 30 days of service of the petition in the
form of a written response to the Board, which may include
documentation of any complaints filed against the expelled or suspended
practitioner subsequent to his or her 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.
* * * * *
[[Page 76927]]
0
12. Amend Sec. 1003.108 by:
0
a. Revising the second sentence of paragraph (a) introductory text;
0
b. Revising paragraph (a)(1) introductory text;
0
c. Revising the second sentence of paragraph (a)(1)(i);
0
d. Revising paragraph (a)(1)(iv); and by
0
e. Revising paragraph (a)(2), to read as follows:
Sec. 1003.108 Confidentiality.
(a) Complaints and preliminary inquiries. * * * A practitioner
whose conduct is the subject of a complaint or preliminary inquiry,
however, may waive confidentiality, except that the EOIR disciplinary
counsel may decline to permit a waiver of confidentiality if it is
determined that an ongoing preliminary inquiry may be substantially
prejudiced by public disclosure before the filing of a Notice of Intent
to Discipline.
(1) Disclosure of information for the purpose of protecting the
public. The EOIR disciplinary counsel may disclose information
concerning a complaint or preliminary inquiry for the protection of the
public when the necessity for disclosing information outweighs the
necessity for preserving confidentiality in circumstances including,
but not limited to, the following:
* * * * *
(i) * * * If disclosure of information is made pursuant to this
paragraph, the EOIR disciplinary counsel may define the scope of
information disseminated and may limit the disclosure of information to
specified individuals and entities;
* * * * *
(iv) A practitioner is the subject of multiple disciplinary
complaints and the EOIR disciplinary counsel has determined not to
pursue all of the complaints. The EOIR disciplinary counsel may inform
complainants whose allegations have not been pursued of the status of
any other preliminary inquiries or the manner in which any other
complaint(s) against the practitioner have been resolved.
(2) Disclosure of information for the purpose of conducting a
preliminary inquiry. The EOIR disciplinary counsel, in the exercise of
discretion, may disclose documents and information concerning
complaints and preliminary inquiries to the following individuals and
entities: * * *
* * * * *
PART 1292--REPRESENTATION AND APPEARANCES
0
13. The authority citation for Part 1292 continues to read as follows:
Authority: 8 U.S.C. 1103, 1252b, 1362.
0
14. 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: December 12, 2008.
Michael B. Mukasey,
Attorney General.
[FR Doc. E8-30027 Filed 12-17-08; 8:45 am]
BILLING CODE 4410-30-P
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