EOIR Announces Two Final Rules Relating to Legal Representation

On September 16, 2015, EOIR also released two final regulations relating to R&A. The first rule changed the regulation relating to appearances before the agency to allow for separate appearances in bond proceedings and other proceedings conducted by EOIR. The second rule changed the process by which organizations and attorneys apply for, remain on, and are removed from EOIR’s “List of Pro Bono Legal Service Providers” (formerly the “Free Legal Service Provider List”).

The first change, “Separate Representation for Custody and Bond Proceedings,” will replace the current version of 8 CFR § 1003.17. Under the replaced regulation, while bond proceedings are separate and distinct proceedings from the underlying removal proceedings (with a separately created record of proceedings), the filing of Form EOIR-28 entered the representative’s appearance in all proceedings before the Immigration Court. If a representative entered his or her appearance for a bond hearing, he or she was required to submit a Motion to Withdraw in order to be relieved from the responsibility of future representation. Because withdrawal is in the discretion of the Immigration Judge, this regime prevented representatives from reliably engaging in bond-only representation. Under the new regulation, separate bond-only representation is expressly permitted. EOIR and its stakeholders, including CLINIC, are hopeful that this change will increase access to counsel for people in removal proceedings.

The second change, “List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings,” will be codified at 8 CFR §§ 1003.61-66. It significantly changes the process by which organizations and individuals participate in the List of Pro Bono Legal Service Providers that is distributed to every unrepresented individual who appears before the Immigration Court. The regulations are intended to stem abuse of the List by attorneys who do not engage in a meaningful amount of pro bono representation and instead use the List to solicit fee-paying clients. The new regulations provide for three categories of participants: (1) organizations; (2) pro bono referral services; and (3) individual attorneys. Each category of participants has different eligibility criteria for placement on the List. Notably, organizations and individual attorneys must certify that they provide at least 50 hours of pro bono representation annually in each immigration court location for which they appear on the list. Further, organizations and attorneys placed on the list must document their compliance with the 50-hour pro bono requirement and provide the A-Numbers of those provided pro bono services. In addition to the minimum pro bono requirement, an individual attorney who wishes to be placed on the list must document his or her good faith efforts to provide pro bono legal services through an organization or pro bono referral service and persuade EOIR that the current level of services is inadequate to serve the community.

EOIR’s announcement of these changes, together with the proposed rule to reform the Recognition and Accreditation process can be found here: http://www.justice.gov/eoir/notice-eoir-publishes-rules