The Executive Office for Immigration Review (EOIR) has proposed significant changes in the standards and procedure for obtaining agency recognition and staff accreditation (R&A) from the Board of Immigration Appeals (BIA). The agency placed the proposed rule on its website at http://www.justice.gov/eoir/notice-eoir-publishes-rules. Comments to EOIR are due on November 17, 2015. CLINIC has analyzed the proposed changes and will be circulating model comments before submitting its comments to EOIR. The following is a summary of the proposed changes.
EOIR asserts that the purpose of the proposed changes is to “promote the effective and efficient administration of justice before DHS and EOIR by increasing the availability of competent non-lawyer representation for underserved immigrant populations.” Tightening the eligibility standards and augmenting the application process will purportedly decrease the likelihood of the public being victimized by fraud or incompetence at the hands of unscrupulous practitioners. If implemented as written, however, the proposed changes would likely result in at least a temporary decrease in the number of agencies and staff currently listed on the roster based on agencies’ inactivity in immigration legal representation or inability to quickly meet the new R&A standards.
Transfer from BIA to OLAP
Administration of the R&A program would stay within EOIR but be transferred from the BIA to the Office of Legal Access Programs (OLAP). OLAP was formerly called the BIA Pro Bono Project, which was established in 2000. Its mission is to “improve access to legal information and counseling and increase rates of representation for persons appearing before the immigration court and the Board.” It has overseen the legal orientation programs (LOP) and has facilitated access to pro bono representation and self-help materials to persons in immigration proceedings. OLAP would be given authority to approve and disapprove requests for R&A, maintain the roster of recognized agencies and accredited staff, and terminate an agency or staff person’s recognition or accredited representative status.
Agency Recognition Qualifications
The current requirements for agency recognition are that the organization be: (1) a nonprofit religious, charitable, social service, or similar organization established in the United States; (2) charge only “nominal fees” and assess no membership dues for its services; and (3) possess adequate knowledge, information, and experience.
The proposed rule would add that the nonprofit agency have federal tax-exempt status. If the agency has not obtained that status at the time of seeking recognition, it may submit proof that it has applied for it. It might then be granted “conditional recognition” for a three-year period. It would need to have obtained tax-exempt status in order to renew it recognition.
It replaces the nominal fee requirement with a more flexible analysis that looks more to the agency’s other sources of revenue and balances those against the income it receives from client fees. It would require the agency to demonstrate that a “substantial amount” of its legal services budget comes from sources other than client fees, donations, and membership dues. Agencies would be requested to submit at least the prior year’s budget, the current year’s if available, or a projected budget if neither past nor current are available. The purpose is so that OLAP can see all revenue sources, including grants and in-kind donations, including volunteer services. The greater the amount of funding derived from client fees, the more likelihood the agency would fail the “substantial amount” test. OLAP is authorized to grant waivers of the substantial amount requirement if the agency meets a “public interest” test, which would look to whether the agency operates in an underserved area or serves vulnerable or economically disadvantaged persons (e.g., mentally incompetent persons, unaccompanied minors, or VAWA applicants).
The rule bolsters the evidence needed to establish that the agency primarily serves low income and indigent clients. In order to receive and maintain recognized status, an agency would have to have at least one accredited representative on staff, although the agency may still apply for recognized status concurrently with staff accreditation.
Finally, the rule would identify the proof required for the agency to show it has “adequate knowledge, information, and experience.” The agency would need to describe “the services it intends to offer; the legal services to which it has access; staff qualifications and breadth of immigration knowledge; formal trainings attended by staff; and agreements with non-staff immigration practitioners or other organizations for consultations or technical legal assistance.”
Staff Accreditation Qualifications
The regulation would change the current requirement that the staff member possess “good moral character” to the more general requirement of “character and fitness.” This will necessitate a more comprehensive examination of the applicant’s “honesty, trustworthiness, diligence, professionalism, and reliability.” This in turn may require submission of a criminal background check and letters of recommendation. No application will be approved if the staff member has been convicted of a serious crime, either in the United States or abroad. The applicant’s current immigration status will also be considered with the final regulations and possibly contain a requirement that noncitizens possess employment authorization and not be in immigration proceedings.
Applicants for accreditation must currently describe the nature and extent of their experience and knowledge of immigration law. The proposed regulation would require them to possess “broad knowledge and adequate experience in immigration law and procedure.” This is not a change in the requirements. Rather, EOIR is seeking more specificity about the applicant’s knowledge and experience. The rule does not establish any minimum number of hours of training or describe the types of courses that should be attended. OLAP wishes to maintain flexibility in deciding whether the applicant has satisfied this requirement, though it may in the future develop “best practice” guidelines that set forth recommended education, trainings, internships, and testing.
Proposed changes to the application process for initial or renewal R&A include the following:
- Applications for staff accreditation will need to be filed on Form EOIR-31A
- Applicants for R&A are no longer required to serve a copy of their applications to ICE but EOIR may seek ICE’s input if needed
- Applicants for R&A must serve a copy of their application on the USCIS district office where the representatives offer or intend to offer services, and not just where the organization is located
- OLAP may seek additional information regarding the agency or the staff member from third parties and new sources
- Agencies with multiple offices would no longer have to submit separate applications for recognition of each physical office, but rather can request that OLAP extend the agency recognition to include a new office or location
- Agencies will need to renew their recognition status every three years (except for those granted conditional recognition, in which case they must seek its first renewal after two years)
- To renew agency recognition, the agency must also simultaneously have one of its staff receive accreditation either for renewal or as a first-time application
- Applications for renewal of agency recognition must be filed on Form EOIR-31 and include documentary evidence that it meets the qualifications, including fee schedules, annual budgets, and reports
- Applications for renewal of staff accreditation must be filed on Form EOIR 31A and contain evidence that the staff member has received formal training in immigration law and procedure commensurate with the services the agency provides
- Staff will also be accredited for the same period as the agency, and will need to renew accreditation at the same time the agency seeks renewal of recognition status (i.e., accreditation will not exist independent of agency recognition)
- New reporting and recordkeeping requirements are intended to provide OLAP with a means to monitor compliance with the R&A requirements.
The proposed procedural changes would be phased in for currently recognized agencies and accredited staff members. Those agencies that have been recognized the longest would be required to renew their status earlier than those who obtained it more recently.
The proposed regulations also contain procedures for administratively terminating R&A and sanctioning agencies and staff. It would create a uniform disciplinary process for attorneys, accredited representatives, other practitioners, and agencies.