80_FR_59689 80 FR 59499 - Separate Representation for Custody and Bond Proceedings

80 FR 59499 - Separate Representation for Custody and Bond Proceedings

DEPARTMENT OF JUSTICE
Executive Office for Immigration Review

Federal Register Volume 80, Issue 190 (October 1, 2015)

Page Range59499-59502
FR Document2015-24016

This final rule adopts, without change, the proposed rule ``Separate Representation for Custody and Bond Proceedings'' as published in the Federal Register on September 17, 2014. Specifically, this final rule amends the Executive Office for Immigration Review (EOIR) regulations relating to the representation of an individual in custody and bond proceedings before EOIR by allowing a representative before EOIR to enter an appearance in custody and bond proceedings without such appearance constituting an entry of appearance for all of the individual's proceedings before the Immigration Court.

Federal Register, Volume 80 Issue 190 (Thursday, October 1, 2015)
[Federal Register Volume 80, Number 190 (Thursday, October 1, 2015)]
[Rules and Regulations]
[Pages 59499-59502]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-24016]



[[Page 59499]]

Vol. 80

Thursday,

No. 190

October 1, 2015

Part V





Department of Justice





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Executive Office for Immigration Review





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8 CFR Parts 1003, 1240, 241, et al.





 Separate Representation for Custody and Bond Proceedings; List of Pro 
Bono Legal Service Providers for Individuals in Immigration 
Proceedings; Recognition of Organizations and Accreditation of Non-
Attorney Representatives; Final Rules and Proposed Rule

Federal Register / Vol. 80 , No. 190 / Thursday, October 1, 2015 / 
Rules and Regulations

[[Page 59500]]


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DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1003

[EOIR Docket No. 181; AG Order No. 3563-2015]
RIN 1125-AA78


Separate Representation for Custody and Bond Proceedings

AGENCY: Executive Office for Immigration Review, Department of Justice.

ACTION: Final rule.

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SUMMARY: This final rule adopts, without change, the proposed rule 
``Separate Representation for Custody and Bond Proceedings'' as 
published in the Federal Register on September 17, 2014. Specifically, 
this final rule amends the Executive Office for Immigration Review 
(EOIR) regulations relating to the representation of an individual in 
custody and bond proceedings before EOIR by allowing a representative 
before EOIR to enter an appearance in custody and bond proceedings 
without such appearance constituting an entry of appearance for all of 
the individual's proceedings before the Immigration Court.

DATES: This rule is effective December 7, 2015.

FOR FURTHER INFORMATION CONTACT: Jean King, General Counsel, Executive 
Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls 
Church, VA 22041, telephone (703) 305-0470 (not a toll-free call).

SUPPLEMENTARY INFORMATION: 

I. Public Participation

    On September 17, 2014, the Department published in the Federal 
Register a rule proposing to amend EOIR's regulations relating to 
representation of aliens in custody and bond proceedings. 79 FR 55659. 
The comment period ended November 17, 2014. The Department received ten 
comments. For the reasons set forth below, the proposed rule is adopted 
as a final rule without change.

II. Background

    The Immigration and Nationality Act (INA) provides that aliens 
appearing before an immigration judge ``shall have the privilege of 
being represented, at no expense to the Government, by counsel of the 
alien's choosing who is authorized to practice in such proceedings.'' 
INA sec. 240(b)(4) (8 U.S.C. 1229a(b)(4)); see also INA sec. 292 (8 
U.S.C. 1362). In order to represent an individual before EOIR, a 
representative must file a Notice of Entry of Appearance with the 
Immigration Court or the Board of Immigration Appeals (Board). See 8 
CFR 1003.17, 1003.3(a)(3). A representative who enters his or her 
appearance before the Immigration Court is the representative of record 
for the individual in all of the individual's proceedings, including 
removal or deportation proceedings and, if the individual is detained, 
custody and bond proceedings. Under the current rules, to the extent a 
representative wishes to represent an individual solely in custody and 
bond proceedings, and not in any other proceedings before the 
Immigration Court, he or she must file a motion to withdraw 
representation after the individual's custody and bond proceedings 
conclude. Cf. Matter of N-K- & V-S-, 21 I&N Dec. 879, 880, 881 n.2 (BIA 
1997). Whether to grant or deny that motion is within the sole 
discretion of the immigration judge presiding over the particular case. 
See 8 CFR 1003.17(b).
    In order to authorize a representative to enter an appearance 
solely for custody and bond proceedings before the Immigration Court, 
this final rule amends EOIR's regulations at 8 CFR 1003.17 to 
explicitly allow for separate appearances in custody and bond 
proceedings. Permitting such separate appearances is expected to 
encourage more attorneys and accredited representatives to agree to 
represent individuals who would otherwise appear pro se at their 
custody and bond proceedings, which, in turn, will benefit the public 
by increasing the efficiency of the Immigration Courts.
    Under the current regulations, representatives are already required 
to file a Notice of Entry of Appearance on Form EOIR-28 in any 
proceeding before an immigration judge. See 8 CFR 1003.17. Under this 
final rule, representatives will continue to be required to file a Form 
EOIR-28 in custody and bond proceedings as required by 8 CFR 1003.17. 
However, as described herein, EOIR is amending the Form EOIR-28 to 
require a representative to indicate if he or she is entering an 
appearance for custody and bond proceedings only, any other proceedings 
only, or for all proceedings.
    The effective date for this rule, December 7, 2015, has been 
designated to coincide with the date on which EOIR's case management 
system will permit separate entries of appearance in custody and bond 
proceedings. Separate appearances will not be permitted prior to the 
effective date.

III. Comments and Responses

    As noted above, the Department received ten comments in response to 
the proposed rule. One comment was from the Executive Director of the 
Catholic Legal Immigration Network; one was from the American 
Immigration Lawyers Association; one was from the Executive Director of 
the National Immigrant Justice Center; one was from a clinical 
professor at the Louisiana State University Law Center; one was from a 
group of law students; five were from individual commenters. All ten 
commenters expressed universal support for promulgation of this final 
rule. Where the commenters also provided suggested modifications to the 
rule or otherwise offered suggestions for implementation of the rule, 
the Department has summarized those comments below and responded to 
them. The comments are addressed by topic because some commenters 
raised multiple subjects and some comments overlapped.
    Comment. Two commenters suggested that EOIR consider expanding the 
proposed rule to allow for certain types of limited appearances. 
Specifically, one commenter suggested that EOIR expand the rule to 
allow limited appearances on behalf of children in immigration 
proceedings during the time they are in the custody of the Department 
of Health and Human Services, as a means to permit pro bono attorneys 
and legal service providers to represent these children without 
requiring them to remain the attorney of record after the child is 
released to family in another part of the country. The other commenter 
suggested that EOIR expand the rule to allow limited appearances for 
distinct and finite purposes, including but not limited to motions to 
reopen, motions for change of venue, or motions to remand.
    Response. EOIR declines to incorporate, into the final rule, any 
expansion to allow limited appearances as requested by these 
commenters. As noted in the preamble to the proposed rule, under EOIR's 
regulations, custody and bond proceedings are separate and apart from 
removal and deportation proceedings. See 79 FR 55659, 55660 (Sep. 17, 
2014) (citing 8 CFR 1003.19(d); Matter of Guerra, 24 I&N Dec 37, 40 n.2 
(BIA 2006); Matter of R-S-H-, 23 I&N Dec 629, 630 n.7 (BIA 2003)). This 
final rule is intended only to effectuate that separation by allowing 
attorneys or representatives to appear on behalf of an individual in 
his or her custody and bond proceedings without being held responsible 
for appearing, filing documents, receiving notices, or any of

[[Page 59501]]

the other duties enumerated in 8 CFR 1292.5(a) in the alien's other 
proceedings, unless and until the attorney or representative files a 
Notice of Entry of Appearance in such proceedings. Such separation is 
consistent with the Board's precedential decision Matter of Velasquez, 
19 I&N Dec. 377, 384 (BIA 1986), as a separate appearance in custody 
and bond proceedings would not be considered a ``limited'' appearance, 
which is generally understood to refer to a limit in the scope of 
representation required by a representative. By contrast, this final 
rule requires a representative of record to represent an individual in 
all aspects of each separate type of proceeding, unless the immigration 
judge grants a motion to withdraw or substitute counsel.
    Comment. Three of the commenters expressed concerns regarding the 
information collection necessary to implement the rule. First, one 
commenter expressed concerns that the changes to the information 
collection necessary to implement the rule might delay finalization and 
implementation of the rule, and suggested that, in the interim, EOIR 
provide guidance to the immigration courts and liberally grant motions 
to withdraw so as not to delay implementation. Another commenter 
requested the addition of check boxes on the Form EOIR-28 to allow 
practitioners to indicate their type of appearance as well as an 
attestation that the practitioner explained the scope of his or her 
representation to his or her client and that the practitioner has 
obtained his or her client's consent. A third commenter similarly 
suggested that EOIR either add check boxes on the Form EOIR-28 to allow 
a practitioner to indicate for which proceedings they are entering an 
appearance or create a new appearance form solely for custody and bond 
proceedings.
    Response. In response to the first commenter's concern, EOIR notes 
that it has been working expeditiously to implement the necessary 
changes to the information collection for the final rule, which will 
eliminate the need for interim guidance. In response to the second and 
third commenter's concerns, while EOIR believes that it could be 
burdensome and inefficient to require practitioners to submit a new 
type of appearance form solely for custody and bond proceedings, it is 
amending the current Form EOIR-28 so that it may be used for entering 
an appearance in all types of proceedings before EOIR. Specifically, 
EOIR is revising the Form EOIR-28 to include check boxes for 
practitioners to indicate whether they are entering an appearance for 
all proceedings; custody and bond proceedings only; or all proceedings 
other than custody and bond proceedings. Regarding the third 
commenter's concern as to client consent to separate appearances, EOIR 
notes that the current Form EOIR-28 contains a check box for the 
practitioner to indicate that he or she has received the respondent's 
consent for representation. EOIR is also adding language to the revised 
Form EOIR-28 clarifying that the practitioner, by entering his or her 
appearance before EOIR, acknowledges that the practitioner will be 
subject to the disciplinary rules and procedures at 8 CFR 1003.101 et 
seq., including, pursuant to 8 CFR 292.3(h)(3) and 1003.108(c), 
publication of the name of the practitioner and any finding(s) of 
misconduct by EOIR. EOIR believes that the check box regarding alien 
consent, coupled with this additional language clarifying the 
applicability of EOIR's disciplinary rules and procedures to 
practitioners entering an appearance before EOIR, will ensure that a 
practitioner will make an individual in proceedings before EOIR aware 
of the scope of his or her representation.

IV. Regulatory Requirements

A. Regulatory Flexibility Act

    The Department has reviewed this regulation in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)) and has determined that 
this rule will not have a significant economic impact on a substantial 
number of small entities. The rule will not regulate ``small 
entities,'' as that term is defined in 5 U.S.C. 601(6).

B. 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.

C. 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 Fairness Act of 1996 (SBREFA), 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 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

D. Executive Order 12866 and Executive Order 13563 (Regulatory Planning 
and Review)

    The Department has determined that this rule is not a ``significant 
regulatory action'' under section 3(f) of Executive Order 12866, 
Regulatory Planning and Review and, therefore, it has not been reviewed 
by the Office of Management and Budget. Nevertheless, the Department 
certifies that this regulation has been drafted in accordance with the 
principles of Executive Order 12866, section 1(b), and Executive Order 
13563. Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits, including consideration of potential economic, 
environmental, public health, and safety effects, distributive impacts, 
and equity.
    The benefits of this final rule include increased representation of 
detained individuals by permitting a representative to enter an 
appearance before the Immigration Court for the discrete task of 
securing a bond or release from detention, without requiring the 
representative also to represent the individual in all of the 
individual's immigration proceedings. The public will benefit from this 
amendment to the regulations, because the amendment will make it easier 
for individuals who may not be able to afford to hire an attorney for 
all of their proceedings before the Immigration Court to at least be 
able to be represented during their custody and bond proceedings. The 
Department anticipates that this rule will also have a positive 
economic impact on the Department, because increasing the number of 
individuals who are represented in their custody and bond proceedings 
will enable immigration judges to adjudicate proceedings in a more 
effective and timely manner, adding to the overall efficiency of 
immigration proceedings. The Department does not foresee any burdens to 
the public or the Department.

E. 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

[[Page 59502]]

responsibilities among the various levels of government. Therefore, in 
accordance with section 6 of Executive Order 13132, the Department has 
determined that this rule does not have sufficient federalism 
implications to warrant preparation of a federalism summary impact 
statement.

F. Executive Order 12988 (Civil Justice Reform)

    This rule has been prepared in accordance with the standards in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

    The information collection requirement (Form EOIR-28) contained in 
this rule has been previously approved by the Office of Management and 
Budget under the provisions of the Paperwork Reduction Act (OMB Number 
1125-0006). This final rule contains revised recordkeeping and 
reporting requirements. Specifically, EOIR will collect additional 
information on the Form EOIR-28 indicating the type of proceeding(s) 
for which an attorney or representative is entering his or her 
appearance. For this reason, EOIR has submitted the information 
collection request to OMB for review and clearance in accordance with 
review procedures of the Paperwork Reduction Act of 1995, 44 U.S.C. 
chapter 35, and its implementing regulations, 5 CFR part 1320. EOIR 
received written comments regarding this information collection as 
noted above. Notice of OMB approval for this information collection 
will be published in a future Federal Register document. The estimated 
public burden associated with this collection is 17,510 hours. It is 
estimated that 175,101 responses will be received annually, and that 
each respondent will take 6 minutes to complete the form.

List of Subjects in 8 CFR Part 1003

    Administrative practice and procedure, Aliens, Immigration, Legal 
services, Organization and functions (Government agencies).

    Accordingly, for the reasons stated in the preamble, part 1003 of 
chapter V of title 8 of the Code of Federal Regulations is amended as 
follows:

PART 1003--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

0
1. The authority citation for part 1003 continues to read as follows:

    Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 
1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 
1254a, 1255, 1324d, 1330, 1361, 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, 111 Stat. 2196-200; sections 1506 
and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 
1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.


0
2. In Sec.  1003.17, revise paragraph (a) to read as follows:


Sec.  1003.17  Appearances.

    (a) In any proceeding before an Immigration Judge in which the 
alien is represented, the attorney or representative shall file a 
Notice of Entry of Appearance on Form EOIR-28 with the Immigration 
Court, and shall serve a copy of the Notice of Entry of Appearance on 
the DHS as required by 8 CFR 1003.32(a). The entry of appearance of an 
attorney or representative in a custody or bond proceeding shall be 
separate and apart from an entry of appearance in any other proceeding 
before the Immigration Court. An attorney or representative may file an 
EOIR-28 indicating whether the entry of appearance is for custody or 
bond proceedings only, any other proceedings only, or for all 
proceedings. Such Notice of Entry of Appearance must be filed and 
served even if a separate Notice of Entry of Appearance(s) has 
previously been filed with the DHS for appearance(s) before the DHS.
* * * * *

     Dated: September 15, 2015.
Sally Quillian Yates,
Deputy Attorney General.
[FR Doc. 2015-24016 Filed 9-29-15; 11:15 am]
 BILLING CODE 4410-30-P



                                                                                                  Vol. 80                           Thursday,
                                                                                                  No. 190                           October 1, 2015




                                                                                                  Part V


                                                                                                  Department of Justice
                                                                                                  Executive Office for Immigration Review
                                                                                                  8 CFR Parts 1003, 1240, 241, et al.
                                                                                                  Separate Representation for Custody and Bond Proceedings; List of Pro
                                                                                                  Bono Legal Service Providers for Individuals in Immigration Proceedings;
                                                                                                  Recognition of Organizations and Accreditation of Non-Attorney
                                                                                                  Representatives; Final Rules and Proposed Rule
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                                             59500            Federal Register / Vol. 80, No. 190 / Thursday, October 1, 2015 / Rules and Regulations

                                             DEPARTMENT OF JUSTICE                                   292 (8 U.S.C. 1362). In order to                      III. Comments and Responses
                                                                                                     represent an individual before EOIR, a                   As noted above, the Department
                                             Executive Office for Immigration                        representative must file a Notice of                  received ten comments in response to
                                             Review                                                  Entry of Appearance with the                          the proposed rule. One comment was
                                                                                                     Immigration Court or the Board of                     from the Executive Director of the
                                             8 CFR Part 1003                                         Immigration Appeals (Board). See 8 CFR                Catholic Legal Immigration Network;
                                             [EOIR Docket No. 181; AG Order No. 3563–
                                                                                                     1003.17, 1003.3(a)(3). A representative               one was from the American Immigration
                                             2015]                                                   who enters his or her appearance before               Lawyers Association; one was from the
                                                                                                     the Immigration Court is the                          Executive Director of the National
                                             RIN 1125–AA78                                           representative of record for the                      Immigrant Justice Center; one was from
                                                                                                     individual in all of the individual’s                 a clinical professor at the Louisiana
                                             Separate Representation for Custody                     proceedings, including removal or
                                             and Bond Proceedings                                                                                          State University Law Center; one was
                                                                                                     deportation proceedings and, if the                   from a group of law students; five were
                                             AGENCY:  Executive Office for                           individual is detained, custody and
                                                                                                                                                           from individual commenters. All ten
                                             Immigration Review, Department of                       bond proceedings. Under the current
                                                                                                                                                           commenters expressed universal
                                             Justice.                                                rules, to the extent a representative
                                                                                                                                                           support for promulgation of this final
                                             ACTION: Final rule.
                                                                                                     wishes to represent an individual solely
                                                                                                                                                           rule. Where the commenters also
                                                                                                     in custody and bond proceedings, and
                                                                                                                                                           provided suggested modifications to the
                                             SUMMARY:    This final rule adopts,                     not in any other proceedings before the
                                                                                                                                                           rule or otherwise offered suggestions for
                                             without change, the proposed rule                       Immigration Court, he or she must file
                                                                                                                                                           implementation of the rule, the
                                             ‘‘Separate Representation for Custody                   a motion to withdraw representation
                                                                                                                                                           Department has summarized those
                                             and Bond Proceedings’’ as published in                  after the individual’s custody and bond
                                                                                                                                                           comments below and responded to
                                             the Federal Register on September 17,                   proceedings conclude. Cf. Matter of N–
                                                                                                     K– & V–S–, 21 I&N Dec. 879, 880, 881                  them. The comments are addressed by
                                             2014. Specifically, this final rule                                                                           topic because some commenters raised
                                             amends the Executive Office for                         n.2 (BIA 1997). Whether to grant or
                                                                                                     deny that motion is within the sole                   multiple subjects and some comments
                                             Immigration Review (EOIR) regulations                                                                         overlapped.
                                             relating to the representation of an                    discretion of the immigration judge
                                                                                                                                                              Comment. Two commenters suggested
                                             individual in custody and bond                          presiding over the particular case. See 8
                                                                                                                                                           that EOIR consider expanding the
                                             proceedings before EOIR by allowing a                   CFR 1003.17(b).
                                                                                                        In order to authorize a representative             proposed rule to allow for certain types
                                             representative before EOIR to enter an                                                                        of limited appearances. Specifically, one
                                             appearance in custody and bond                          to enter an appearance solely for
                                                                                                     custody and bond proceedings before                   commenter suggested that EOIR expand
                                             proceedings without such appearance                                                                           the rule to allow limited appearances on
                                             constituting an entry of appearance for                 the Immigration Court, this final rule
                                                                                                     amends EOIR’s regulations at 8 CFR                    behalf of children in immigration
                                             all of the individual’s proceedings                                                                           proceedings during the time they are in
                                             before the Immigration Court.                           1003.17 to explicitly allow for separate
                                                                                                     appearances in custody and bond                       the custody of the Department of Health
                                             DATES: This rule is effective December 7,                                                                     and Human Services, as a means to
                                                                                                     proceedings. Permitting such separate
                                             2015.                                                                                                         permit pro bono attorneys and legal
                                                                                                     appearances is expected to encourage
                                             FOR FURTHER INFORMATION CONTACT: Jean                   more attorneys and accredited                         service providers to represent these
                                             King, General Counsel, Executive Office                 representatives to agree to represent                 children without requiring them to
                                             for Immigration Review, 5107 Leesburg                   individuals who would otherwise                       remain the attorney of record after the
                                             Pike, Suite 2600, Falls Church, VA                      appear pro se at their custody and bond               child is released to family in another
                                             22041, telephone (703) 305–0470 (not a                  proceedings, which, in turn, will benefit             part of the country. The other
                                             toll-free call).                                        the public by increasing the efficiency               commenter suggested that EOIR expand
                                             SUPPLEMENTARY INFORMATION:                              of the Immigration Courts.                            the rule to allow limited appearances for
                                                                                                        Under the current regulations,                     distinct and finite purposes, including
                                             I. Public Participation                                                                                       but not limited to motions to reopen,
                                                                                                     representatives are already required to
                                                On September 17, 2014, the                           file a Notice of Entry of Appearance on               motions for change of venue, or motions
                                             Department published in the Federal                     Form EOIR–28 in any proceeding before                 to remand.
                                             Register a rule proposing to amend                      an immigration judge. See 8 CFR                          Response. EOIR declines to
                                             EOIR’s regulations relating to                          1003.17. Under this final rule,                       incorporate, into the final rule, any
                                             representation of aliens in custody and                 representatives will continue to be                   expansion to allow limited appearances
                                             bond proceedings. 79 FR 55659. The                      required to file a Form EOIR–28 in                    as requested by these commenters. As
                                             comment period ended November 17,                       custody and bond proceedings as                       noted in the preamble to the proposed
                                             2014. The Department received ten                       required by 8 CFR 1003.17. However, as                rule, under EOIR’s regulations, custody
                                             comments. For the reasons set forth                     described herein, EOIR is amending the                and bond proceedings are separate and
                                             below, the proposed rule is adopted as                  Form EOIR–28 to require a                             apart from removal and deportation
                                             a final rule without change.                            representative to indicate if he or she is            proceedings. See 79 FR 55659, 55660
                                                                                                     entering an appearance for custody and                (Sep. 17, 2014) (citing 8 CFR 1003.19(d);
                                             II. Background                                                                                                Matter of Guerra, 24 I&N Dec 37, 40 n.2
                                                                                                     bond proceedings only, any other
                                               The Immigration and Nationality Act                   proceedings only, or for all proceedings.             (BIA 2006); Matter of R–S–H–, 23 I&N
                                             (INA) provides that aliens appearing                       The effective date for this rule,                  Dec 629, 630 n.7 (BIA 2003)). This final
                                             before an immigration judge ‘‘shall have                December 7, 2015, has been designated                 rule is intended only to effectuate that
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                                             the privilege of being represented, at no               to coincide with the date on which                    separation by allowing attorneys or
                                             expense to the Government, by counsel                   EOIR’s case management system will                    representatives to appear on behalf of an
                                             of the alien’s choosing who is                          permit separate entries of appearance in              individual in his or her custody and
                                             authorized to practice in such                          custody and bond proceedings. Separate                bond proceedings without being held
                                             proceedings.’’ INA sec. 240(b)(4) (8                    appearances will not be permitted prior               responsible for appearing, filing
                                             U.S.C. 1229a(b)(4)); see also INA sec.                  to the effective date.                                documents, receiving notices, or any of


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                                                              Federal Register / Vol. 80, No. 190 / Thursday, October 1, 2015 / Rules and Regulations                                         59501

                                             the other duties enumerated in 8 CFR                    proceedings; custody and bond                         investment, productivity, innovation, or
                                             1292.5(a) in the alien’s other                          proceedings only; or all proceedings                  on the ability of United States-based
                                             proceedings, unless and until the                       other than custody and bond                           enterprises to compete with foreign-
                                             attorney or representative files a Notice               proceedings. Regarding the third                      based enterprises in domestic and
                                             of Entry of Appearance in such                          commenter’s concern as to client                      export markets.
                                             proceedings. Such separation is                         consent to separate appearances, EOIR                 D. Executive Order 12866 and Executive
                                             consistent with the Board’s precedential                notes that the current Form EOIR–28                   Order 13563 (Regulatory Planning and
                                             decision Matter of Velasquez, 19 I&N                    contains a check box for the practitioner             Review)
                                             Dec. 377, 384 (BIA 1986), as a separate                 to indicate that he or she has received
                                             appearance in custody and bond                          the respondent’s consent for                             The Department has determined that
                                             proceedings would not be considered a                   representation. EOIR is also adding                   this rule is not a ‘‘significant regulatory
                                             ‘‘limited’’ appearance, which is                        language to the revised Form EOIR–28                  action’’ under section 3(f) of Executive
                                             generally understood to refer to a limit                clarifying that the practitioner, by                  Order 12866, Regulatory Planning and
                                             in the scope of representation required                 entering his or her appearance before                 Review and, therefore, it has not been
                                             by a representative. By contrast, this                  EOIR, acknowledges that the                           reviewed by the Office of Management
                                             final rule requires a representative of                 practitioner will be subject to the                   and Budget. Nevertheless, the
                                             record to represent an individual in all                disciplinary rules and procedures at 8                Department certifies that this regulation
                                             aspects of each separate type of                        CFR 1003.101 et seq., including,                      has been drafted in accordance with the
                                             proceeding, unless the immigration                      pursuant to 8 CFR 292.3(h)(3) and                     principles of Executive Order 12866,
                                             judge grants a motion to withdraw or                    1003.108(c), publication of the name of               section 1(b), and Executive Order 13563.
                                             substitute counsel.                                     the practitioner and any finding(s) of                Executive Orders 12866 and 13563
                                                Comment. Three of the commenters                     misconduct by EOIR. EOIR believes that                direct agencies to assess all costs and
                                             expressed concerns regarding the                        the check box regarding alien consent,                benefits of available regulatory
                                             information collection necessary to                     coupled with this additional language                 alternatives and, if regulation is
                                             implement the rule. First, one                          clarifying the applicability of EOIR’s                necessary, to select regulatory
                                             commenter expressed concerns that the                   disciplinary rules and procedures to                  approaches that maximize net benefits,
                                             changes to the information collection                   practitioners entering an appearance                  including consideration of potential
                                             necessary to implement the rule might                   before EOIR, will ensure that a                       economic, environmental, public health,
                                             delay finalization and implementation                                                                         and safety effects, distributive impacts,
                                                                                                     practitioner will make an individual in
                                             of the rule, and suggested that, in the                                                                       and equity.
                                                                                                     proceedings before EOIR aware of the
                                             interim, EOIR provide guidance to the                                                                            The benefits of this final rule include
                                                                                                     scope of his or her representation.                   increased representation of detained
                                             immigration courts and liberally grant
                                             motions to withdraw so as not to delay                  IV. Regulatory Requirements                           individuals by permitting a
                                             implementation. Another commenter                                                                             representative to enter an appearance
                                                                                                     A. Regulatory Flexibility Act                         before the Immigration Court for the
                                             requested the addition of check boxes
                                             on the Form EOIR–28 to allow                              The Department has reviewed this                    discrete task of securing a bond or
                                             practitioners to indicate their type of                 regulation in accordance with the                     release from detention, without
                                             appearance as well as an attestation that               Regulatory Flexibility Act (5 U.S.C.                  requiring the representative also to
                                             the practitioner explained the scope of                 605(b)) and has determined that this                  represent the individual in all of the
                                             his or her representation to his or her                 rule will not have a significant                      individual’s immigration proceedings.
                                             client and that the practitioner has                    economic impact on a substantial                      The public will benefit from this
                                             obtained his or her client’s consent. A                 number of small entities. The rule will               amendment to the regulations, because
                                             third commenter similarly suggested                     not regulate ‘‘small entities,’’ as that              the amendment will make it easier for
                                             that EOIR either add check boxes on the                 term is defined in 5 U.S.C. 601(6).                   individuals who may not be able to
                                             Form EOIR–28 to allow a practitioner to                                                                       afford to hire an attorney for all of their
                                                                                                     B. Unfunded Mandates Reform Act of
                                             indicate for which proceedings they are                                                                       proceedings before the Immigration
                                                                                                     1995
                                             entering an appearance or create a new                                                                        Court to at least be able to be
                                             appearance form solely for custody and                    This rule will not result in the                    represented during their custody and
                                             bond proceedings.                                       expenditure by State, local, and tribal               bond proceedings. The Department
                                                Response. In response to the first                   governments, in the aggregate, or by the              anticipates that this rule will also have
                                             commenter’s concern, EOIR notes that it                 private sector, of $100 million or more               a positive economic impact on the
                                             has been working expeditiously to                       in any one year, and it will not                      Department, because increasing the
                                             implement the necessary changes to the                  significantly or uniquely affect small                number of individuals who are
                                             information collection for the final rule,              governments. Therefore, no actions were               represented in their custody and bond
                                             which will eliminate the need for                       deemed necessary under the provisions                 proceedings will enable immigration
                                             interim guidance. In response to the                    of the Unfunded Mandates Reform Act                   judges to adjudicate proceedings in a
                                             second and third commenter’s concerns,                  of 1995.                                              more effective and timely manner,
                                             while EOIR believes that it could be                                                                          adding to the overall efficiency of
                                                                                                     C. Small Business Regulatory
                                             burdensome and inefficient to require                                                                         immigration proceedings. The
                                                                                                     Enforcement Fairness Act of 1996
                                             practitioners to submit a new type of                                                                         Department does not foresee any
                                             appearance form solely for custody and                     This rule is not a major rule as                   burdens to the public or the
                                             bond proceedings, it is amending the                    defined by section 251 of the Small                   Department.
                                             current Form EOIR–28 so that it may be                  Business Regulatory Enforcement
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                                             used for entering an appearance in all                  Fairness Act of 1996 (SBREFA), 5 U.S.C.               E. Executive Order 13132 (Federalism)
                                             types of proceedings before EOIR.                       804. This rule will not result in an                    This rule will not have substantial
                                             Specifically, EOIR is revising the Form                 annual effect on the economy of $100                  direct effects on the States, on the
                                             EOIR–28 to include check boxes for                      million or more; a major increase in                  relationship between the national
                                             practitioners to indicate whether they                  costs or prices; or significant adverse               government and the States, or on the
                                             are entering an appearance for all                      effects on competition, employment,                   distribution of power and


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                                             59502            Federal Register / Vol. 80, No. 190 / Thursday, October 1, 2015 / Rules and Regulations

                                             responsibilities among the various                      received written comments regarding                   ■ 2. In § 1003.17, revise paragraph (a) to
                                             levels of government. Therefore, in                     this information collection as noted                  read as follows:
                                             accordance with section 6 of Executive                  above. Notice of OMB approval for this
                                             Order 13132, the Department has                         information collection will be published              § 1003.17   Appearances.
                                             determined that this rule does not have                 in a future Federal Register document.                   (a) In any proceeding before an
                                             sufficient federalism implications to                   The estimated public burden associated                Immigration Judge in which the alien is
                                             warrant preparation of a federalism                     with this collection is 17,510 hours. It              represented, the attorney or
                                             summary impact statement.                               is estimated that 175,101 responses will              representative shall file a Notice of
                                             F. Executive Order 12988 (Civil Justice                 be received annually, and that each                   Entry of Appearance on Form EOIR–28
                                             Reform)                                                 respondent will take 6 minutes to                     with the Immigration Court, and shall
                                                                                                     complete the form.
                                               This rule has been prepared in                                                                              serve a copy of the Notice of Entry of
                                             accordance with the standards in                        List of Subjects in 8 CFR Part 1003                   Appearance on the DHS as required by
                                             sections 3(a) and 3(b)(2) of Executive                                                                        8 CFR 1003.32(a). The entry of
                                                                                                        Administrative practice and
                                             Order 12988.                                                                                                  appearance of an attorney or
                                                                                                     procedure, Aliens, Immigration, Legal
                                                                                                     services, Organization and functions                  representative in a custody or bond
                                             G. Paperwork Reduction Act                                                                                    proceeding shall be separate and apart
                                                                                                     (Government agencies).
                                                The information collection                                                                                 from an entry of appearance in any
                                             requirement (Form EOIR–28) contained                       Accordingly, for the reasons stated in             other proceeding before the Immigration
                                             in this rule has been previously                        the preamble, part 1003 of chapter V of               Court. An attorney or representative
                                             approved by the Office of Management                    title 8 of the Code of Federal                        may file an EOIR–28 indicating whether
                                             and Budget under the provisions of the                  Regulations is amended as follows:
                                                                                                                                                           the entry of appearance is for custody or
                                             Paperwork Reduction Act (OMB                                                                                  bond proceedings only, any other
                                             Number 1125–0006). This final rule                      PART 1003—EXECUTIVE OFFICE FOR
                                                                                                     IMMIGRATION REVIEW                                    proceedings only, or for all proceedings.
                                             contains revised recordkeeping and                                                                            Such Notice of Entry of Appearance
                                             reporting requirements. Specifically,
                                                                                                     ■ 1. The authority citation for part 1003             must be filed and served even if a
                                             EOIR will collect additional information
                                                                                                     continues to read as follows:                         separate Notice of Entry of
                                             on the Form EOIR–28 indicating the
                                             type of proceeding(s) for which an                        Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8            Appearance(s) has previously been filed
                                             attorney or representative is entering his              U.S.C. 1101, 1103, 1154, 1155, 1158, 1182,            with the DHS for appearance(s) before
                                             or her appearance. For this reason, EOIR                1226, 1229, 1229a, 1229b, 1229c, 1231,                the DHS.
                                             has submitted the information                           1254a, 1255, 1324d, 1330, 1361, 1362; 28              *      *     *    *     *
                                                                                                     U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No.
                                             collection request to OMB for review                                                                            Dated: September 15, 2015.
                                                                                                     2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002;
                                             and clearance in accordance with                        section 203 of Pub. L. 105–100, 111 Stat.             Sally Quillian Yates,
                                             review procedures of the Paperwork                      2196–200; sections 1506 and 1510 of Pub. L.
                                             Reduction Act of 1995, 44 U.S.C.                                                                              Deputy Attorney General.
                                                                                                     106–386, 114 Stat. 1527–29, 1531–32; section
                                             chapter 35, and its implementing                        1505 of Pub. L. 106–554, 114 Stat. 2763A–             [FR Doc. 2015–24016 Filed 9–29–15; 11:15 am]
                                             regulations, 5 CFR part 1320. EOIR                      326 to –328.                                          BILLING CODE 4410–30–P
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Document Created: 2015-12-15 08:40:37
Document Modified: 2015-12-15 08:40:37
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis rule is effective December 7, 2015.
ContactJean King, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone (703) 305-0470 (not a toll-free call).
FR Citation80 FR 59499 
RIN Number1125-AA78
CFR AssociatedAdministrative Practice and Procedure; Aliens; Immigration; Legal Services and Organization and Functions (government Agencies)

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