80 FR 59503 - List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review Federal Register Volume 80, Issue 190 (October 1, 2015)
Executive Office for Immigration Review
Federal Register Volume 80, Issue 190 (October 1, 2015)
| Page Range | 59503-59513 | |
| FR Document | 2015-24017 |
[Federal Register Volume 80, Number 190 (Thursday, October 1, 2015)] [Rules and Regulations] [Pages 59503-59513] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-24017] Federal Register / Vol. 80 , No. 190 / Thursday, October 1, 2015 / Rules and Regulations [[Page 59503]] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Parts 1003, 1240, and 1241 [EOIR Docket No. 164P; A.G. Order No. 3565-2015] RIN 1125-AA62 List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings AGENCY: Executive Office for Immigration Review, Department of Justice. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This final rule adopts, as amended, the proposed rule entitled ``List of Pro Bono Legal Service Providers for Aliens in Immigration Proceedings.'' The final rule changes the name of the ``List of Free Legal Service Providers,'' maintained by the Executive Office for Immigration Review (EOIR), to the ``List of Pro Bono Legal Service Providers'' (List). It enhances the eligibility requirements for providers to be included on the List. It authorizes the Director of EOIR, or his or her designee, to place providers on the List and remove them from the List. The rule also allows the public to comment on eligible applicants and requires approved providers to certify their eligibility every 3 years. DATES: This rule is effective November 30, 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 governing the list of organizations, pro bono referral services, and attorneys available to represent individuals in immigration court on a pro bono basis. 79 FR 55662. The comment period ended November 17, 2014. The Department received seven comments. Both in response to these comments and as the result of further consideration, the Department has decided to revise the proposed rule as discussed below. Except for these revisions, the proposed rule is adopted without change. II. Regulatory Background This rule amends 8 CFR part 1003 by revising Sec. Sec. 1003.61 through 1003.66. It also amends 8 CFR parts 1240 and 1241 by revising Sec. Sec. 1240.10 and 1241.14, respectively. The rule provides the Director of EOIR or his or her designee with the authority to maintain the quarterly List. See Sec. Sec. 1003.61(a)(1), (b). The rule modifies the criteria for organizations,\1\ pro bono referral services,\2\ and attorneys to be placed on the List, stating in part that attorneys and organizations must provide at least 50 hours annually of pro bono legal services at each immigration court location where the attorney or organization intends to be on the List.\3\ See Sec. 1003.62. The rule also specifies that an attorney can appear on the List only under certain circumstances and only if he or she cannot provide pro bono services through or in association with an organization or pro bono referral service. See Sec. 1003.62(d). The rule identifies the information that organizations, pro bono referral services, and attorneys must provide to EOIR when applying to be on the List. See Sec. 1003.63. Regarding the application process, the rule states, in part, that the names of applicants meeting the regulatory requirements will be posted for public comments. See Sec. 1003.63(f). The rule also requires that, every three years, providers on the List must certify that they continue to meet the eligibility requirements. See Sec. 1003.64(b)(2). In addition, the rule specifies the procedures for removing providers from, and reinstating them to, the List. See Sec. 1003.65. --------------------------------------------------------------------------- \1\ The rule, at Sec. 1003.61(a)(3), defines an ``organization'' as ``[a] non-profit religious, charitable, social service, or similar group established in the United States.'' Organizations can apply to be recognized by EOIR pursuant to 8 CFR part 1292. This rule distinguishes between organizations that have been recognized by EOIR and other, non-recognized, organizations. \2\ The rule, at Sec. 1003.61(a)(4), defines a ``pro bono referral service'' as ``[a] referral service, offered by a non- profit group, association, or similar organization established in the United States that assists persons in locating pro bono representation by making case referrals to attorneys or organizations that are available to provide pro bono representation.'' \3\ As previously noted at 79 FR 55662 n.2, the term ``immigration court location'' refers both to the immigration courts and to facilities where hearings may be conducted but where no EOIR personnel have a permanent duty station. --------------------------------------------------------------------------- III. Comments and Responses As noted above, the Department received seven comments in response to the proposed rule. One comment was from the Executive Director of the Catholic Legal Immigration Network; one was from a professor and director of a law school clinical program; one was from the Director of the Immigration Program of the Legal Aid Society of Rochester, New York; one was from a group of three law students; two were from individual commenters; and one was from an anonymous commenter. Below, the Department has summarized the comments and explained the changes the Department has made in response. Because some comments overlap and commenters raised multiple subjects, the comments are addressed by topic rather than by reference to a specific commenter. A. The 50-Hour Requirement The Department received a number of comments regarding the requirement, at Sec. Sec. 1003.62(a)(1), (b)(1), and (d)(2), that each attorney and organization provide at least 50 hours per year of pro bono legal services at each immigration court location where the attorney or organization intends to appear on the List. The Department had posed four questions: whether the requirement is too demanding for certain private attorneys; whether the requirement is not demanding enough for organizations; whether the standards for organizations and attorneys should differ from one another in any other way; and whether there are alternative standards, for example relating to the number or type of cases accepted, that would be more appropriate measures of pro bono representation. See 79 FR 55665-66. 1. Attorneys Three commenters addressed the impact of the 50-hour requirement on attorneys, with two supporting the requirement and one questioning it. Of the supporters, one stated that the requirement was ``appropriate'' for attorneys, and the other noted that the requirement is consistent with the American Bar Association's Model Rule of Professional Conduct (ABA Model Rule) 6.1, which states that ``[a] lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.'' \4\ The commenter who questioned the requirement raised concerns that it would be too burdensome for solo or small-firm practitioners. This commenter offered an example of a solo practitioner in Arkansas representing a detained client before the Oakdale, Louisiana, Immigration Court, then appearing before the Memphis, Tennessee, Immigration Court after the client is [[Page 59504]] released. To be on the List for both the Oakdale and Memphis courts, the attorney would have to perform 100 hours of pro bono representation annually, or 50 before each court. Also, this commenter argued, the paperwork would be burdensome for a solo or small-firm practitioner, and such an attorney's ability to represent clients pro bono in non- immigration proceedings could be impacted. --------------------------------------------------------------------------- \4\ In the Notice of Proposed Rulemaking at 79 FR 55665 n.8, the Department cited ABA Model Rule 6.1 in support of the 50-hour requirement. --------------------------------------------------------------------------- The final rule keeps the 50-hour requirement with respect to attorneys. The Department agrees with the commenters who supported the requirement. While the Department appreciates the other commenter's concerns, the 50-hour requirement for attorneys is essential to the rule. As noted in the Notice of Proposed Rulemaking, EOIR has consistently received complaints that certain attorneys on the List do not accept significant numbers of pro bono cases. 79 FR 55663-64. The 50-hour requirement will help ensure that attorneys listed as providing pro bono legal services in a specific location are actually available to do so. This rule does not impose any limits on an attorney's pro bono practice, as such, and the 50-hour requirement is applicable only with respect to attorneys who choose to seek inclusion by name on the List. With respect to the hypothetical Arkansas solo practitioner wishing to appear on the List for both the Oakdale and Memphis courts, if it would be difficult for him or her to perform 50 hours of pro bono service annually at each court, then he or she likely lacks the resources to provide pro bono services regularly before both courts, and therefore should not be on the List for both courts. The Department does not believe that the 50-hour requirement imposes an undue paperwork burden, as attorneys regularly track the time they spend on individual cases. It is possible that some attorneys wishing to be on the List would have to reduce the pro bono services they provide in non-immigration proceedings. However, the Department's overriding concern is that attorneys on the List be available to provide pro bono representation before EOIR. Though the 50-hour requirement will remain substantively unchanged, the Department has amended Sec. 1003.62(d)(2) to clarify that ``[t]he attorney may count, toward the requirement, both out-of-court preparation time and in-court time.'' The Department had explained, in the preamble of the Notice of Proposed Rulemaking at 79 FR 55665, that preparation time counts toward the requirement, but corresponding language did not appear in the proposed rule's text. 2. Organizations Three commenters addressed the impact of the 50-hour requirement on organizations. One supported the requirement, stating that it was appropriate for organizations. The other two recommended that EOIR amend the requirement, noting that organizations often charge nominal fees for representing clients. One of these two recommended dropping the 50-hour requirement for organizations recognized by EOIR under 8 CFR part 1292. This commenter argued that recognized organizations are less likely than private attorneys or other organizations to abuse their placement on the List, as they have already established to the satisfaction of the Board of Immigration Appeals that they charge only nominal fees.\5\ This commenter also stated that many recognized organizations would have difficulty meeting the requirement because, based on community needs, they concentrate on representing clients before the Department of Homeland Security (DHS) instead of the immigration courts. The other of the two recommended dropping the requirement for all organizations or, failing that, for recognized organizations. Alternatively, this commenter recommended lowering the requirement to 25 hours annually. In addition, the first of the two argued that the 50-hour requirement for organizations could ``hinder access . . . to emergency pro bono services.'' As an example, this commenter noted that, following the 2014 influx to the United States of individuals from Central America, organizations and attorneys from around the country provided pro bono legal services to recent entrants detained in Artesia, New Mexico. --------------------------------------------------------------------------- \5\ Under 8 CFR 1292.2(a), in order to be recognized by EOIR, an organization ``must establish to the satisfaction of the [Board of Immigration Appeals] that . . . (1) [i]t makes only nominal charges and assesses no excessive membership dues for persons given assistance . . . .'' --------------------------------------------------------------------------- The final rule keeps the requirement that both recognized and non- recognized organizations provide 50 hours annually of pro bono legal services at each immigration court location where the organization appears on the List. The Department disagrees with reducing the requirement to 25 hours annually. As indicated in the Notice of Proposed Rulemaking, a number of state bar associations recommend that attorneys perform a minimum of 50 hours of pro bono work annually, and ABA Model Rule 6.1 states that lawyers should aspire to perform at least 50 hours of pro bono legal services annually. See 79 FR 55665. In addition, the rule does not require that each of an organization's attorneys and representatives meet the 50-hour requirement, but rather that the organization as a whole perform 50 hours of pro bono legal services annually in order to be included on the List. The Department further disagrees with exempting recognized organizations from the 50- hour requirement. The fact that a recognized organization is prohibited from charging more than nominal fees does not establish that the organization is available to represent clients pro bono. As the rule makes clear at Sec. 1003.61(a)(2), representation for a fee, even a nominal fee, is not pro bono representation. Though the Department appreciates that some recognized organizations concentrate on representing clients before DHS, the purpose of the List is to inform individuals in immigration court proceedings of providers who perform significant pro bono services before the courts. Though the final rule keeps the 50-hour requirement for organizations, the Department has, in light of comments that some organizations do not have the resources to represent clients in immigration court proceedings without charging at least a nominal fee, modified the requirement to allow organizations to count pro bono services in some cases where the organization did not actually represent the client. Specifically, the Department has amended Sec. Sec. 1003.62(a)(1) and (b)(1) to allow organizations to count, toward the requirement, time an organization's attorneys and representatives spent providing pro bono legal services in cases the organization eventually referred to an outside provider for pro bono representation before the immigration court location. In the proposed rule, by contrast, organizations could count only time spent on cases where an attorney or representative of the organization represented the client. In addition, as with the provision addressing attorneys, the Department has amended Sec. Sec. 1003.62(a)(1) and (b)(1) to clarify that, ``[w]hen an attorney or representative of [an] organization represents [an] individual pro bono . . . the organization may count, toward the 50-hour requirement, the attorney's or representative's out- of-court preparation time and in-court time.'' Regarding pro bono legal services offered temporarily following events [[Page 59505]] such as the 2014 influx of individuals from Central America, the Department encourages such services and does not believe they would be hindered by the rule. The rule does not impose limits on an organization's ability to offer pro bono services before any immigration court location, including those at which the organization does not appear on the List. The List, which EOIR anticipates updating quarterly,\6\ is not designed to publicize services offered for less than three months at a time. However, the Department encourages organizations to publicize any such short-term services in collaboration with organizations or pro bono referral services already operating in the relevant location. Should the need arise, EOIR may explore how to assist with publicizing such services as well. --------------------------------------------------------------------------- \6\ See Sec. 1003.61(b) (stating that the List ``shall be updated not less than quarterly''). --------------------------------------------------------------------------- 3. Alternatives to the 50-Hour Requirement One commenter responded to the Department's question about alternative ways to measure pro bono services. This commenter was opposed to requiring a provider to accept a specific number of pro bono cases, as some cases require dramatically more work than others. However, this commenter stated that ``[a] measurement regarding the types of pro bono cases accepted may . . . be appropriate if it is done correctly,'' primarily because ``such a requirement might encourage each organization to accept a variety of cases, rather than allowing a single attorney or organization to take on every simple case.'' The Department agrees that, generally speaking, it is beneficial for each organization and attorney on the List to accept a variety of pro bono cases. However, the Department declines to incorporate, into the final rule, any requirement concerning the types of cases providers accept, as the nature of cases varies between immigration court locations. In addition, it can sometimes be valuable for providers to specialize in particular types of cases, thereby building their expertise. B. Restrictions on Private Attorneys on the List One commenter responded to the proposed rule's provision, at Sec. 1003.63(d)(3), that an individual attorney who does not work for a pro bono organization (``private attorney'') cannot appear on the List if he or she can provide pro bono legal services through or in association with a nonprofit organization or a pro bono referral service. This commenter ``generally support[ed]'' the requirement but expressed two concerns. First, this commenter stated that, ``especially in rural and isolated immigration courts, the List has traditionally served the beneficial, though unintended, purpose of identifying local attorneys who were willing to represent respondents,'' and that this ``unintended function of the List is actually critical to access to counsel in those immigration courts.'' This commenter concluded that ``[e]liminating all the private attorneys from the List (which will happen in most courts that have at least one nonprofit organization providing pro bono legal services) will result in an overall reduction in access to counsel'' in some locations, ``unless EOIR takes other reasonable steps to provide information to the respondents regarding how they may locate attorneys willing to represent them before the court.'' (Emphasis omitted). Second, this commenter argued that ``[a]nother consequence of eliminating private attorneys from the List is that the nonprofit organizations remaining on the List will experience a much greater volume of calls to their organizations.'' This commenter stated that ``EOIR has made great progress in supporting pro bono representation,'' but ``must provide more resources to support the organizations remaining on the List on whom the entire burden of sustaining pro bono representation in immigration court will now fall.'' The Department believes that the provision at issue is necessary. To the extent that the List functions to inform individuals in immigration court proceedings of attorneys who will represent them for a fee, this function is, as the commenter noted, unintended. The List's intended function is to inform such individuals of providers who will represent them pro bono. The provision at issue, drafted in light of complaints that certain attorneys on the List do not accept significant numbers of pro bono cases,\7\ will help ensure that attorneys who do not accept significant numbers of pro bono cases will not appear on the List. --------------------------------------------------------------------------- \7\ See 79 FR 55663-64. --------------------------------------------------------------------------- However, the Department acknowledges the concern that, once the rule takes effect, individuals in immigration court proceedings in some, particularly rural, locations may be less informed than they currently are of paid legal services, as well as the concern that organizations on the List could receive more inquiries than they have the capacity to handle. EOIR is committed to improving access to legal information and counseling and to increasing representation rates before the immigration courts. In line with the commenter's suggestions, EOIR may explore other ways to inform individuals in proceedings about paid legal services, including providing contact information for bar associations through which they may be referred to local immigration counsel. In addition, organizations are welcome to contact EOIR directly, after the rule takes effect, with observations regarding the rule's effects on organizations' operations and on access to counsel in the immigration courts. C. Renaming the List Three commenters addressed the fact that the proposed rule, at Sec. 1003.61(b), renamed the ``Free Legal Services Providers List'' as the ``List of Pro Bono Legal Service Providers.'' One commenter agreed with the name change, stating that the use of the word ``free'' ``implies that there is no financial responsibility for any client wishing to receive legal services.'' The second commenter stated that, while the term ``pro bono'' is understood by attorneys and ``may provide clarity to members of the bar,'' its meaning may not be clear to individuals in immigration court proceedings. In light of this fact, and because many pro bono providers also charge fees to some clients, this commenter suggested that EOIR use a title such as ``Free and Low- Cost Legal Service Providers.'' The third commenter ``generally support[ed]'' the use of the term ``pro bono,'' but, like the second commenter, cautioned that this term may be unclear to some, and recommended ``includ[ing] a sentence explaining the purpose for which the services are provided.'' The final rule retains the name ``List of Pro Bono Legal Service Providers.'' As noted in the Notice of Proposed Rulemaking at 79 FR 55663, the use of the term ``pro bono'' tracks the language in the Immigration and Nationality Act. See Immigration and Nationality Act (INA or Act) sections 208(d)(4)(B) (requiring EOIR to provide asylum applicants with a list of providers available ``on a pro bono basis''), 239(b)(2) (requiring EOIR to compile lists of providers ``who have indicated their availability to represent pro bono aliens in [removal] proceedings''). However, the Department acknowledges that some individuals in immigration court proceedings will not understand this term. Therefore, the Department will consider including, on the List, a short statement clearly explaining the List's nature and purpose. [[Page 59506]] D. Fees One commenter suggested that providers be required to certify, under the penalty of perjury, whether they charge fees to the majority of clients, and that the List should include information on the extent to which each provider charges fees. The Department declines to adopt the commenter's suggestion in the final rule. The Department appreciates that there may be benefits to including, on the List, information on fees. However, the percentage of clients to whom a provider charges fees may well fluctuate, and it could prove difficult for EOIR to verify the accuracy of providers' representations. Though the Department declines, at this time, to require providers to submit information on fees, the Department may, in the future, consider whether information on fees should be incorporated into the List. E. Filings and Communications One commenter suggested that, instead of requiring paper applications, EOIR should ``look for alternative electronic methods through which to make an initial application, submit comments or complaints, and apply for continued participation.'' The Department agrees that electronic filings and communications would be beneficial. Beginning when the final rule takes effect, EOIR will accept electronic comments and recommendations from the public pertaining to applications to appear on the List. The Department has revised Sec. 1003.63(f) to make clear that such electronic comments and recommendations are permitted. In addition, EOIR is considering, in the future, permitting prospective and current providers to electronically submit a wide range of documents. Such documents could include applications to appear on the List, declarations that a provider remains qualified to appear on the List, requests to be removed from the List, responses to inquiries and notices from EOIR, and notifications of changes in information or status. EOIR is also considering communicating with prospective and current providers electronically. In the future, EOIR may electronically transmit documents such as decisions to grant or deny applications to appear on the List, inquiries to providers in response to complaints, notices that a provider has automatically been removed from the List or that the Director intends to remove a provider from the List, and decisions to remove a provider from the List. In anticipation of such electronic communications, the Department has revised Sec. Sec. 1003.64(b) and 1003.65(a)(2), (d)(2), (d)(3), and (d)(4)(ii), pertaining to various written communications from EOIR to providers, to state that they can be sent electronically, in addition to by mail. No notice-and-comment period is required for the revisions described in this paragraph, as they pertain to ``agency organization, procedure, or practice'' under 5 U.S.C. 553(b). In the meantime, to assist prospective and current providers, EOIR has created a form--Optional Form EOIR-56, Request to be Included on the List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings--that organizations, pro bono referral services, and attorneys will be able to use to apply to appear on the List, and to certify their continuing eligibility, once the final rule takes effect. The form will be available in an electronic fillable format. However, unless EOIR begins accepting electronic submissions, the completed form will need to be submitted to EOIR on paper. Although EOIR will not require prospective and current providers to use Optional Form EOIR-56, the Department has deleted from Sec. 1003.63(a) the statement that ``[a] form is not required in order to apply to be included on the List.'' This change will allow EOIR greater flexibility, as it gains experience administering the List under this final rule, to further streamline the application process in the future. F. Other Comments One commenter, noting the ``language barrier[s]'' and ``social isolation of indigent aliens,'' asked whether either ``translation services [would] be provided,'' or whether a ``provider [would] be required to work in both English and the language spoken by the indigent alien.'' This rule setting forth the requirements for inclusion on the List does not require that providers speak particular languages or supply translation services.\8\ EOIR provides interpreters at immigration court hearings if the individual in proceedings lacks adequate command of English to fully understand and participate in the proceedings. The Department encourages prospective providers to note, in their applications to appear on the List, information such as their languages spoken or translation services offered. --------------------------------------------------------------------------- \8\ The Department notes, however, that the existing EOIR disciplinary rules, which are applicable to all attorneys and accredited representatives appearing before EOIR on behalf of any client, include a general provision that ``[i]t is the obligation of the practitioner to take reasonable steps to communicate with the client in a language that the client understands.'' 8 CFR 1003.102(r). --------------------------------------------------------------------------- One commenter, while noting that ``the word `alien' has long been used to describe immigrants'' and appears in the Immigration and Nationality Act, ``encourage[d] EOIR to refrain from using the term . . . wherever possible.'' The Department has deleted the term ``alien'' from the rule's title and, where possible, from the regulatory text, and has avoided using the term in this preamble where possible. The use of the term ``alien'' is often necessary in the Department's regulations governing immigration proceedings given that, as the commenter acknowledges, the term is used throughout the immigration statutes. However, in this final rule, the Department has refrained from using ``alien'' as a generic term for a person in immigration court proceedings, given that individuals in immigration court proceedings can assert that they are United States citizens.\9\ --------------------------------------------------------------------------- \9\ For example, immigration judges conduct claimed status review proceedings, in which individuals who are deemed by DHS to be subject to expedited removal from the United States under INA 235(b)(1) can argue, among other things, that they are United States citizens. See 8 CFR 1235.3(b)(5). --------------------------------------------------------------------------- One commenter was concerned whether providers' periodic declarations of eligibility under Sec. 1003.64(b)(2) would be available for comment or review by the public, given that they would contain clients' alien registration numbers. The commenter ``encourage[d] EOIR to clearly state in the [final rule] that the declaration . . . shall be maintained in a separate file and can only be reviewed by EOIR staff or the applicant.'' Although EOIR understands the commenter's concern, it is unnecessary to state, in the regulation, that providers' periodic declarations of eligibility can be reviewed only by EOIR staff or the applicant. EOIR appreciates the importance of protecting, from release to the public, alien registration numbers, and other personally identifiable information,\10\ pertaining to individuals in EOIR proceedings. Neither Sec. 1003.64(b)(2) nor any other provision in the rule permits EOIR to release [[Page 59507]] providers' periodic declarations of eligibility, or any information contained in them. By contrast, Sec. 1003.63(f)(1) directs EOIR to publicly release the names of applicants meeting the requirements to appear on the List, and to make copies of applications available to the public upon request. Although the declarations could be the subject of requests for release under the Freedom of Information Act (FOIA), EOIR's policy, when releasing information pursuant to a FOIA request, is to redact personally identifiable information pertaining to individuals in EOIR proceedings unless the individual in the proceedings has consented in writing to the release of this information.\11\ --------------------------------------------------------------------------- \10\ ``Personally identifiable information'' is ``information which can be used to distinguish or trace an individual's identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother's maiden name, etc.'' Office of Management and Budget Memorandum for the Heads of Executive Departments and Agencies, Safeguarding Against and Responding to the Breach of Personally Identifiable Information, May 22, 2007, at 1 n. 1, at http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2007/m07-16.pdf (last visited September 11, 2015). \11\ See 5 U.S.C. 552(b)(6) (exempting from release ``personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy''). --------------------------------------------------------------------------- IV. Other Revisions In the final rule, the Department has revised Sec. 1003.63(a) to simplify and clarify the application process. Specifically, the Department has deleted the proposed requirement, at Sec. 1003.63(a)(5), that an application be served on the court administrator for each immigration court location where the provider intends to perform pro bono legal services. The Department has concluded that this requirement is unnecessary, as court administrators can be informed of prospective providers through other means. The Department has also deleted, as unnecessary, the proposed requirement, at Sec. 1003.63(a)(4), that an envelope containing an application be marked ``Application for List of Pro Bono Legal Service Providers.'' Finally, the Department has revised Sec. 1006.63(a)(2) to specify that, in an application, a prospective provider must state how the provider's contact information, in addition to the provider's name, should be set forth on the List. The Department has revised the application requirements at Sec. 1003.63(b) and (d) to reflect EOIR's registration requirements for attorneys and accredited representatives. Beginning December 11, 2013, EOIR has required attorneys and accredited representatives to register electronically with EOIR in order to practice before the immigration courts and the Board of Immigration Appeals. See 78 FR 28124 (May 14, 2013); see also 8 CFR 1292.1(f) (stating that ``[t]he [EOIR] Director or his designee is authorized to register, and establish procedures for registering, attorneys and accredited representatives . . . as a condition of practice before immigration judges or the Board of Immigration Appeals''). In light of this requirement, the Department has revised Sec. 1003.63(b)(2) to provide that, in an application to appear on the List, an organization must declare that ``every attorney and accredited representative who will represent clients before EOIR on behalf of the organization is registered to practice before EOIR under Sec. 1292.1(f).'' This provision replaces the proposed rule's requirement that an organization declare that ``every attorney who will provide pro bono legal services before EOIR on behalf of the organization . . . [i]s eligible to practice law in and is a member in good standing of the bar of'' a state or other jurisdiction. The deleted requirement is unnecessary given that, to register with EOIR, an attorney must list all the jurisdictions in which he or she is licensed to practice law. See 8 CFR 1292.1(f) (stating that ``[t]he [EOIR] Director or his designee may administratively suspend from practice before the immigration judges and the Board [of Immigration Appeals] any attorney or accredited representative who fails to provide . . . bar admission information (if applicable)''). For attorneys applying to appear on the List, the Department has revised Sec. 1003.63(d)(5) to provide that, instead of providing the bars in which he or she is a member in good standing, an attorney must provide his or her EOIR registration number. Under the revised Sec. 1003.63(b)(2), an organization, in its application to appear on the List, is only required to declare ``[t]hat every attorney and accredited representative who will represent clients pro bono before EOIR on behalf of the organization is registered'' with EOIR. (Emphasis added.) By contrast, the Department has revised Sec. 1003.63(b)(3) to state that, in its application, an organization must declare ``[t]hat no attorney or representative who will provide pro bono legal services on behalf of the organization in cases pending before EOIR: (i) is under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him or her in the practice of law; or (ii) is the subject of an order of disbarment under Sec. 1003.101(a) or suspension under Sec. 1003.101(a)(2) . . . .'' \12\ (Emphasis added.) Accordingly, if an organization has an attorney or accredited representative who will not enter appearances with EOIR, but who will perform pro bono legal services in cases pending before EOIR other than representing clients,\13\ the organization is not required to declare that the attorney or accredited representative is registered with EOIR. However, the organization must declare that he or she, like an attorney or accredited representative who will represent clients pro bono, meets the requirements of Sec. 1003.63(b)(3).\14\ --------------------------------------------------------------------------- \12\ The Department has revised the underlying requirements at Sec. 1003.62(a)(3) and (b)(3) (Sec. 1003.62(a)(3) and (b)(4) of the proposed rule) to state that ``[n]o attorney or representative who will provide pro bono legal services on [an] organization's behalf in cases pending before EOIR is the subject of an order of disbarment under Sec. 1003.101(a)(1) or suspension under Sec. 1003.101(a)(2).'' \13\ As noted in Sec. 1003.62(a)(1) and (b)(1), as revised, performing other pro bono legal services could include conducting an intake interview or mentoring an attorney or representative to whom a case is referred. \14\ The regulations permit individuals other than attorneys and accredited representatives--for example, law students and law graduates--to represent clients before EOIR in some situations. See 8 CFR 1292.1(a). However, only attorneys and accredited representatives must register with EOIR. See 8 CFR 1292.1(f). Accordingly, the requirement at Sec. 1003.63(b)(2) applies only to attorneys and accredited representatives. Thus, an organization is not required to declare that any other representatives who will represent clients pro bono on its behalf--for example, law students or graduates--are registered with EOIR. However, the requirement at Sec. 1003.63(b)(3) applies to all representatives, even those who are not accredited. --------------------------------------------------------------------------- The Department has made minor revisions to Sec. 1003.63(f), which relates to the notice-and-comment period for applications. The revised provision states that applications shall be publicly posted following ``review of the applications'' by EOIR, as opposed to their receipt. Before posting an application, EOIR will review it to ensure that the application meets the regulatory requirements. For clarity, the revised provision specifies that ``upon request a copy of each application shall be made available for public review,'' as opposed simply to ``for review.'' The revised provision no longer specifies that the copy made available shall be ``date stamped.'' To simplify the time period for commenting, the revised provision states that comments are due ``within 30 days from the first date the name of the applicant is publicly posted,'' as opposed to ``15 days from the last date'' of the posting (applications must be posted for 15 days). Finally, the revised provision states that comments must include the commenter's name and address. The Department has made one revision to Sec. 1003.64(b)(2). The revision relates to the requirement that, in a declaration of continued eligibility, a provider must include alien registration numbers of pro bono clients. The revised provision requires that an organization must provide, for each case, either ``the name of the organization's attorneys or [[Page 59508]] representatives who provided representation or other pro bono legal services, or the name of the attorney, representative, or organization the case was referred to for pro bono legal services.'' This information is necessary for EOIR to verify organizations' compliance with the 50-hour requirement. The Department has simplified Sec. 1003.66, relating to when a provider must inform EOIR of changes in information or status. Under the revised provision, providers must contact EOIR in three situations: if the provider's contact information has changed; if any specific limitations to providing pro bono legal services have changed; and if the provider is no longer eligible to be included on the List under Sec. 1003.62. This section previously contained additional provisions, for example requiring organizations to inform EOIR of any change in the professional status of any attorney or representative providing pro bono legal services before EOIR. The simplified provision is clearer, and less burdensome on providers, than the previous version, while still ensuring that EOIR has adequate information about providers. Finally, for flexibility, the Department has revised Sec. Sec. 1003.61, 1003.62, and 1003.63 to refer to recognition of organizations under 8 CFR part 1292, instead of Sec. 1292.2 For precision, Sec. 1003.62(a)(2) has been revised to refer to a ``representative accredited under part 1292 of this chapter to practice before the immigration courts and the Board of Immigration Appeals,'' instead of simply an ``accredited representative.'' The Department has deleted the provision, at Sec. 1003.62(b)(1) of the proposed rule, that, to be included on the List, a non-recognized organization must be ``established in the United States.'' Upon reflection, this provision was unnecessary, as Sec. 1003.61(a)(3) defines an ``organization'' as ``[a] non-profit religious, charitable, social service, or similar group established in the United States.'' The Department has revised Sec. 1003.62(b)(1) of the final rule (Sec. 1003.62(b)(2) of the proposed rule) to refer to an ``attorney or representative,'' as opposed simply to an attorney. As noted above, individuals other than attorneys can, in some circumstances, be authorized to provide representation on behalf of an organization. See 8 CFR 1292.1(a). For consistency with the rest of the rule, Sec. 1003.65(d)(3) has been revised to refer to ``pro bono legal services'' instead of simply ``pro bono services.'' In addition, to accommodate the revisions described above, and to make the regulation more readable, the Department has made a few minor, non-substantive, revisions not referenced here. V. Notice-and-Comment Requirements The revisions to the proposed rule do not require a new notice-and- comment period. As noted above, the revisions pertaining to electronic filings and communications, at Sec. Sec. 1003.63(f), 1003.64(b), and 1003.65(a)(2), (d)(2), (d)(3), and (d)(4)(ii), pertain to ``agency organization, procedure, or practice'' under 5 U.S.C. 553(b). The other revised provisions are logical outgrowths of those in the proposed rule. See, e.g., Environmental Defense Center v. U.S. E.P.A., 344 F.3d 832, 851-52 (9th Cir. 2003); American Water Works Ass'n v. E.P.A., 40 F.3d 1266, 1274 (D.C. Cir. 1994). VI. Privacy Act The Privacy Act of 1974 states that, except in certain circumstances, ``[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains . . . .'' 5 U.S.C. 552a(b). A ``system of records'' is ``a group of any records under the control of any agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual.'' 5 U.S.C. 552a(a)(5). An ``individual'' is ``a citizen of the United States or an alien lawfully admitted for permanent residence.'' 5 U.S.C. 552a(a)(2). As a policy matter, where a system of records contains records pertaining both to ``individuals'' and to people or entities not covered by the Privacy Act, EOIR treats all the records as subject to the Privacy Act. Thus, EOIR will extend administrative Privacy Act protections to the records collected under this regulation even though the organizations, pro bono referral services, and attorneys the records pertain to are not all ``individuals'' under the Privacy Act.\15\ --------------------------------------------------------------------------- \15\ Administrative Privacy Act protections do not include the civil remedies under 5 U.S.C. 552a(g). --------------------------------------------------------------------------- One of the circumstances in which an agency can disclose records protected by the Privacy Act is ``for a routine use,'' which is a ``use . . . for a purpose which is compatible with the purpose for which [the record] was collected.'' 5 U.S.C. 552a(a)(7), (b)(3). An agency that maintains a system of records must publish, in the Federal Register, a system of records notice that includes, among other things, ``each routine use of the records contained in the system, including the categories of users and the purpose of such use.'' 5 U.S.C. 552a(e)(4)(D). The Department will publish, in the Federal Register, a system of records notice that specifies the routine uses, in line with the provisions of this regulation, under which EOIR will disclose the information collected under this regulation. VII. Regulatory Requirements A. Regulatory Flexibility Act In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), this rule will not have a significant economic impact on a substantial number of small entities. Some small entities, such as non- profit organizations or small law offices, will be affected by this rule. Organizations or private attorneys may be removed from the List of Pro Bono Legal Service Providers if they are no longer qualified to be on the List under this final rule. Likewise, those who wish to have their names included on this List will be affected as they will have to demonstrate their eligibility to have their names listed. However, this rule has no effect on the ability of organizations or private attorneys to represent pro bono clients, or any other clients, and it applies only with respect to organizations and attorneys who choose to seek to be included on the List. Application for placement on the List is completely voluntary and does not confer any rights or benefits on such organizations or law offices. Placement on the List does not constitute government endorsement of a particular entity or private attorney; nor is the List to be used for advertising or soliciting. Rather, the purpose of the List is to notify individuals in immigration court proceedings that these entities or private attorneys are available to provide uncompensated legal services without any direct or indirect remuneration (other than filing fees or photocopying and mailing expenses). 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 also will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions [[Page 59509]] of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1535). 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 (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 (OMB). 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 potential economic, environmental, public health, and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Additionally, it calls on each agency to periodically review its existing regulations and determine whether any should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving its regulatory objectives. This rule affects the function and purpose of the List of Pro Bono Service Legal Service Providers. The benefits of this final rule include addressing long-standing problems of abuse associated with the existing List, updating the term ``free'' with ``pro bono'' legal services to reflect the proper statutory language, creating a minimum number of annual pro bono hours to ensure proper compliance with the spirit of the regulation, and creating greater agency flexibility to remove List participants who do not meet the minimum regulatory requirements. Further, the rule is intended to provide individuals in immigration court proceedings with better information regarding the availability of pro bono representation before the immigration courts, thus benefitting individuals who appear in proceedings before the courts. Burdens to the public are applicable only to attorneys and organizations making a voluntary decision to seek to be included on the List; these include requirements to apply for inclusion on the List, maintain updated contact information, perform a minimum of 50 annual pro bono hours of service at each immigration court location where the attorney or organization intends to be included on the List, and file a declaration every three years of continuing eligibility to be on the List. The regulations provide for removal from the List of a provider who can no longer meet the requirements of inclusion on the List. The Department examined these burdens to the public and has determined that the benefits outweigh the burdens. The Department believes that this rule will have a minimal economic impact on List participants because it provides List participants with flexible means of complying with the rule's requirements. Further, it will not have a substantial economic impact on Department functions, as the Department is already maintaining and updating such a List quarterly. The Department believes this rule will have a positive economic impact for individuals in proceedings before EOIR who need legal services, as the rule is intended to preserve the integrity of the List and ensure that providers on the List are actually available to provide pro bono legal services. 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 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. F. 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. G. Paperwork Reduction Act The Department of Justice, Executive Office for Immigration Review (EOIR), has submitted an information collection request to OMB for review and clearance in accordance with review procedures 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. Some of the comments EOIR received following publication of the proposed rule related to this information collection. Notice of OMB approval for this information collection will be published in a future Federal Register document. One commenter suggested electronic filings and submissions. The Department contemplates implementing an electronic/Internet-based system in the future that may facilitate the collection of information. In the meantime, EOIR has created an optional Form EOIR-56, Request to be Included on the List of Pro Bono Legal Service Providers for Individuals in Immigration Proceedings, to facilitate this information collection. The form will be made available on EOIR's Web site, in a fillable .pdf format. This rule implements new eligibility and application requirements in order for an organization, pro bono referral service, or attorney to be included on the List of Pro Bono Legal Service Providers. Organizations and private attorneys that file an application with EOIR to be included on the List must demonstrate that they provide, or plan to provide, a minimum of 50 hours per year of pro bono legal services at each immigration court location where they intend to be included on the List. Entities and individuals must indicate ``their availability to represent aliens in asylum proceedings on a pro bono basis'' (see INA 208(d)(4)(B)) and ``their availability to represent pro bono aliens in proceedings under section 240'' (see INA 239(b)(2)). They must also indicate whether there are any limitations on the services they plan to provide and in which immigration court locations they plan to provide such services. Private attorneys must demonstrate that they cannot otherwise provide such services through an organization or pro bono referral service. Finally, all providers must file a declaration or a new Form EOIR-56 every three years, certifying that they remain eligible to be on the List. One commenter was concerned with the safeguarding of the client information submitted in compliance with the periodic certification. The declaration certifying continuing eligibility, including the alien registration numbers of clients in whose [[Page 59510]] cases the provider rendered pro bono legal services each year, would not be subject to public review and would be subject to applicable privacy laws. EOIR currently uses appropriate information technology to reduce burden and improve data quality, agency efficiency, and responsiveness to the public. Under this rule, EOIR will continue to do so to the maximum extent practicable and will explore implementing technology to facilitate information collections. EOIR will collect the information for any person or entity seeking to be included on EOIR's List of Pro Bono Legal Service Providers. Under the current regulation, it is estimated that it takes a total of 17 hours annually to provide the required information (50 applicants per year at 20 minutes per application). Under the rule, it is estimated that 129 applicants will file applications each year for the first two years (phase-in period) and take an average of 30 minutes for each application, resulting in an estimated total of 65 hours each year. After the first two years, it is estimated that there will be 93 applicants per year, expending an average of 30 minutes for each application, resulting in an estimated total of 47 hours each year. This would be an increase from the current estimated annual hours by 48 hours annually for the two-year phase-in period and 30 hours annually for the succeeding years. List of Subjects 8 CFR Part 1003 Administrative practice and procedure, Aliens, Immigration, Legal services, Organizations and functions (Government agencies). 8 CFR Part 1240 Administrative practice and procedure, Aliens. 8 CFR Part 1241 Administrative practice and procedure, Aliens, Immigration. Accordingly, for the reasons stated in the preamble, parts 1003, 1240, and 1241 of chapter V of title 8 of the Code of Federal Regulations are 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. Sec. 1003.1 [Amended] 0 2. Amend Sec. 1003.1 by removing and reserving paragraph (b)(11). 0 3. Revise the heading for subpart E to read as follows: Subpart E--List of Pro Bono Legal Service Providers 0 4. Revise Sec. 1003.61 to read as follows: Sec. 1003.61 General provisions. (a) Definitions--(1) Director. Director means the Director of the Executive Office for Immigration Review (EOIR), pursuant to 8 CFR 1001.1(o), and shall also include any office or official within EOIR to whom the Director delegates authority with respect to subpart E of this part. (2) Pro bono legal services. Pro bono legal services are those uncompensated legal services performed for indigent individuals or the public good without any expectation of either direct or indirect remuneration, including referral fees (other than filing fees or photocopying and mailing expenses), although a representative may be regularly compensated by the firm, organization, or pro bono referral service with which he or she is associated. (3) Organization. A non-profit religious, charitable, social service, or similar group established in the United States. (4) Pro bono referral service. A referral service, offered by a non-profit group, association, or similar organization established in the United States that assists persons in locating pro bono representation by making case referrals to attorneys or organizations that are available to provide pro bono representation. (5) Provider. Any organization, pro bono referral service, or attorney whose name is included on the List of Pro Bono Legal Service Providers. (b) Authority. The Director shall maintain a list, known as the List of Pro Bono Legal Service Providers (List), of organizations, pro bono referral services, and attorneys qualified under this subpart to provide pro bono legal services in immigration proceedings. The List, which shall be updated not less than quarterly, shall be provided to individuals in removal and other proceedings before an immigration court. (c) Qualification. An organization, pro bono referral service, or attorney qualifies to be included on the List if the eligibility requirements under Sec. 1003.62 and the application procedures under Sec. 1003.63 are met. (d) Organizations. Approval of an organization's application to be included on the List under this subpart is not equivalent to recognition under part 1292 of this chapter. Recognition under part 1292 of this chapter does not constitute a successful application for purposes of the List. 0 5. Revise Sec. 1003.62 to read as follows: Sec. 1003.62 Eligibility. (a) Organizations recognized under part 1292. An organization that is recognized under part 1292 of this chapter is eligible to apply to have its name included on the List if the organization meets the requirements in paragraphs (a)(1) through (3) of this section. (1) The organization will provide a minimum of 50 hours per year of pro bono legal services to individuals at each immigration court location where the organization intends to be included on the List, in cases where an attorney or representative of the organization, or an attorney or representative to whom the organization has referred the case for pro bono representation, files a Form EOIR-28 Notice of Entry of Appearance as Attorney or Representative before the Immigration Court (EOIR-28 Notice of Entry of Appearance). When an attorney or representative of the organization represents the individual pro bono before the immigration court location, the organization may count, toward the 50-hour requirement, the attorney's or representative's out- of-court preparation time and in-court time. When the organization refers the case for pro bono legal services outside the organization, the organization may count, toward the 50-hour requirement, time the organization's attorneys and representatives spent providing pro bono legal services, for example conducting an intake interview or mentoring the attorney or representative to whom the case is referred. However, the organization is not permitted to count the time of the attorney or representative to whom the case was referred. (2) The organization has on its staff at least one attorney, as defined in Sec. 1292.1(a)(1) of this chapter, or at least one representative accredited under part 1292 of this chapter, to practice before the immigration courts and the Board of Immigration Appeals. (3) No attorney or representative who will provide pro bono legal services on [[Page 59511]] the organization's behalf in cases pending before EOIR is the subject of an order of disbarment under Sec. 1003.101(a)(1) or suspension under Sec. 1003.101(a)(2). (b) Organizations not recognized under part 1292. An organization that is not recognized under part 1292 of this chapter is eligible to apply to have its name included on the List if the organization meets the requirements in paragraphs (b)(1) through (3) of this section. (1) The organization will provide a minimum of 50 hours per year of pro bono legal services to individuals at each immigration court location where the organization intends to be included on the List, in cases where an attorney or representative of the organization, or an attorney or representative to whom the organization has referred the case for pro bono representation, files a Form EOIR-28 Notice of Entry of Appearance. When an attorney or representative of the organization represents the individual pro bono before the immigration court location, the organization may count, toward the 50-hour requirement, the attorney's or representative's out-of-court preparation time and in-court time. When the organization refers the case for pro bono legal services outside the organization, the organization may count, toward the 50-hour requirement, time the organization's attorneys or representatives spent providing pro bono legal services, for example conducting an intake interview or mentoring the attorney or representative to whom the case is referred. However, the organization is not permitted to count the time of the attorney or representative to whom the case was referred. (2) The organization has on its staff at least one attorney, as defined in Sec. 1292.1(a)(1) of this chapter. (3) No attorney or representative who will provide pro bono legal services on the organization's behalf in cases pending before EOIR is the subject of an order of disbarment under Sec. 1003.101(a)(1) or suspension under Sec. 1003.101(a)(2). (c) Pro bono referral services. A referral service is eligible to apply to have its name included on the List at each immigration court location where the referral service either refers or plans to refer cases to attorneys or organizations that will provide pro bono legal services to individuals in proceedings before an immigration judge. (d) Attorneys. An attorney, as defined in Sec. 1292.1(a)(1) of this chapter, is eligible to apply to have his or her name included on the List if the attorney meets the requirements in paragraphs (d)(1) through (3) of this section. (1) The attorney is not the subject of an order of disbarment under Sec. 1003.101(a)(1) or suspension under Sec. 1003.101(a)(2); (2) The attorney will provide a minimum of 50 hours per year of pro bono legal services to individuals at each immigration court location where the attorney intends to be included on the List, in cases where he or she files a Form EOIR-28 Notice of Entry of Appearance. The attorney may count, toward the requirement, both out-of-court preparation time and in-court time. (3) The attorney cannot provide pro bono legal services through or in association with an organization or pro bono referral service described in paragraph (a), (b), or (c) of this section because: (i) Such an organization or referral service is unavailable; or (ii) The range of services provided by an available organization(s) or referral service(s) is insufficient to address the needs of the community. 0 6. Revise Sec. 1003.63 to read as follows: Sec. 1003.63 Applications. (a) Generally. To be included on the List, any organization, pro bono referral service, or attorney that is eligible under Sec. 1003.62 to apply to be included on the List must file an application with the Director. Applications must be received by the Director at least 60 days in advance of the quarterly update in order to be considered. The application must: (1) Establish by clear and convincing evidence that the applicant qualifies to be on the List pursuant to Sec. 1003.61(c); (2) Specify how the organization, pro bono referral service, or attorney wants its name and contact information to be set forth on the List; and (3) Identify each immigration court location where the organization, pro bono referral service, or attorney provides, or plans to provide, pro bono legal services. (b) Organizations. An organization, whether recognized or not under part 1292, must submit with its application a declaration signed by an authorized officer of the organization that states under penalty of perjury: (1) That it will provide annually at least 50 hours of pro bono legal services to individuals in removal or other proceedings before each immigration court location identified in its application; (2) That every attorney and accredited representative who will represent clients pro bono before EOIR on behalf of the organization is registered to practice before EOIR under Sec. 1292.1(f); (3) That no attorney or representative who will provide pro bono legal services on behalf of the organization in cases pending before EOIR: (i) Is under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him or her in the practice of law; or (ii) Is the subject of an order of disbarment under Sec. 1003.101(a)(1) or suspension under Sec. 1003.101(a)(2); and (4) Any specific limitations it has in providing pro bono legal services (e.g., not available to assist detained individuals or those with criminal convictions, or available for asylum cases only). (c) Pro bono referral services. A pro bono referral service must submit with its application a declaration signed by an authorized officer of the referral service that states under penalty of perjury: (1) That it will offer its referral services to individuals in removal or other proceedings before each immigration court location identified in its application; and (2) Any specific limitations it has in providing its pro bono referral services (e.g., not available to assist detained individuals or those with criminal convictions, or available only for asylum cases). (d) Attorneys. An attorney must submit with his or her application a declaration that states under penalty of perjury: (1) That he or she will provide annually at least 50 hours of pro bono legal services to individuals in removal or other proceedings before each immigration court location identified in his or her application; (2) Any specific limitations the attorney has in providing pro bono legal services (e.g., not available to assist detained individuals or those with criminal convictions, or available for asylum cases only); (3) A description of the good-faith efforts he or she made to provide pro bono legal services through an organization or pro bono referral service described in Sec. 1003.62(a), (b), or (c) to individuals appearing before each immigration court location listed in the application; (4) An explanation that any such organization or referral service is unavailable or that the range of services provided by available organization(s) or referral service(s) is insufficient to address the needs of the community; (5) His or her EOIR registration number; [[Page 59512]] (6) That he or she is not under any order suspending, enjoining, restraining, disbarring, or otherwise restricting him or her in the practice of law; and (7) That he or she is not the subject of an order of disbarment under Sec. 1003.101(a)(1) or suspension under Sec. 1003.101(a)(2). (e) Applications approved before November 30, 2015. Providers whose applications to be included on the List were approved before November 30, 2015 must file an application under this section as follows: Organizations and pro bono referral services, within one year of November 30, 2015; attorneys, within six months of November 30, 2015. The names of providers who do not file an application as required by this paragraph shall be removed from the List following expiration of the application time period, the removal of which will be reflected no later than in the next quarterly update. (f) Notice and comments--(1) Public notice and comment. The names of the applicants, whether organizations, pro bono referral services, or individuals, meeting the regulatory requirements to be included on the List shall be publicly posted for 15 days after review of the applications by the Director, and upon request a copy of each application shall be made available for public review. Any individual may forward to the Director comments or a recommendation for approval or disapproval of an application within 30 days from the first date the name of the applicant is publicly posted. The commenting party shall include his or her name and address. A comment or recommendation may be sent to the Director electronically, in which case the Director shall transmit the comment or recommendation to the applicant. A comment or recommendation not sent to the Director electronically must include proof of service on the applicant, in accordance with the definition of ``service'' set forth in Sec. 1003.13. (2) Response. The applicant has 15 days to respond from the date the applicant was served with, or notified by the Director of, the comment. All responses must be filed with the Director and include proof of service of a copy of such response on the commenting party, in accordance with the definition of ``service'' set forth in Sec. 1003.13. 0 7. Revise Sec. 1003.64 to read as follows: Sec. 1003.64 Approval and denial of applications. (a) Authority. The Director in his discretion shall have the authority to approve or deny an application to be included on the List of Pro Bono Legal Service Providers. The Director may request additional information from the applicant to determine whether the applicant qualifies to be included on the List. (b) Decision. The applicant shall be notified of the decision in writing. The written notice shall be served in accordance with the definition of ``service'' set forth in Sec. 1003.13, at the address provided on the application unless the applicant subsequently provides a change of address pursuant to Sec. 1003.66, or shall be transmitted to the applicant electronically. (1) Denials. If the application is denied, the applicant shall be given a written explanation of the grounds for such denial, and the decision shall be final. Such denial shall be without prejudice to file another application at any time after the next quarterly publication of the List. (2) Approval and continuing qualification. If the application is approved, the applicant's name will be included on the List at the next quarterly update. Every three years from the date of approval, a provider must file with the Director a declaration, under penalty of perjury, stating that the provider remains qualified to be included on the List under Sec. 1003.62(a), (b), (c), or (d). For organizations and attorneys, the declaration must include alien registration numbers of clients in whose cases the provider rendered pro bono legal services under Sec. 1003.62(a)(1), (b)(1), or (d)(2), representing at least 50 hours of pro bono legal services each year since the provider's most recent such declaration, or since the provider was included on the List, whichever was more recent. Organizations must provide, for each case listed, the name of the organization's attorneys or representatives who provided representation or other pro bono legal services, or the name of the attorney, representative, or organization the case was referred to for pro bono legal services. If a provider fails to timely file the declaration or declares that it is no longer qualified to be included on the List, the provider's name will be removed from the List at the next quarterly update. Failure to file a declaration within the applicable time period does not prohibit the filing of a new application to be included on the List. 0 8. Revise Sec. 1003.65 to read as follows: Sec. 1003.65 Removal of a provider from the List. (a) Automatic removal. If the Director determines that an attorney on the List is the subject of a final order of disbarment under Sec. 1003.101(a)(1), or an order of suspension under Sec. 1003.101(a)(2), then the Director shall: (1) Remove the name of the attorney from the List no later than at the next quarterly update; and (2) Notify the attorney of such removal in writing, at the last known address given by the provider or electronically. (b) Requests for removal. (1) Any provider may, at any time, submit a written request to have the provider's name removed from the List. The written request may include an explanation for the voluntary removal. Upon such written request, the name of the provider shall be removed from the List, and such removal will be reflected no later than in the next quarterly update. (2) Any provider removed from the List at the provider's request may seek reinstatement to the List upon written notice to the Director. Any request for reinstatement must include a new declaration of eligibility, as set forth under Sec. 1003.63(b), (c), or (d). Reinstatement to the List is at the sole discretion of the Director. Upon the Director's approval of reinstatement, the provider's name shall be included on the List no later than in the next quarterly update. Reinstatement to the List does not affect the requirement under Sec. 1003.64(b)(2) that a provider submit a new declaration of eligibility every three years from the date of the approval of the original application to be included on the List. (c) EOIR inquiry in response to complaints. If EOIR receives complaints that a particular provider on the List may no longer be accepting new pro bono clients, the Director may send a written inquiry to the provider noting that EOIR has received complaints with regard to the provider's acceptance of pro bono clients and allowing an opportunity for the provider to state whether the provider is continuing to comply with the regulations in this subpart or, if appropriate, whether the provider wishes to request voluntary removal from the List as provided in paragraph (b) of this section. The Director may remove a provider from the List for failure to respond to a written inquiry issued under this paragraph within 30 days or such additional time period stated by the Director in the written inquiry. (d) Procedures for removing providers from the List. The following provisions apply in cases not covered by paragraphs (a), (b), or (c) of this section. (1) Grounds. A provider shall be removed from the List if it, he, or she: (i) Fails to comply with Sec. 1003.66; [[Page 59513]] (ii) Has filed a false declaration in connection with an application filed pursuant to Sec. 1003.63; (iii) Improperly uses the List primarily to advertise or solicit clients for compensated legal services; or (iv) Fails to comply with any and all other requirements of this subpart. (2) Notice. If the Director determines that a provider falls within one or more of the enumerated grounds under paragraph (d)(1) of this section, the Director shall promptly notify the provider in writing, at the address last provided to the Director by the provider or electronically, of the Director's intention to remove the name of the provider from the List. (3) Response. The provider may submit a written answer within 30 days from the date the notice is served, as described in Sec. 1003.13, or is sent to the provider electronically. The provider must establish by clear and convincing evidence that the provider continues to meet the qualifications for inclusion on the List, by declaration under penalty of perjury as to the provider's continued compliance with eligibility requirements under this subchapter, which must include alien registration numbers of clients in whose cases the provider rendered pro bono legal services under Sec. 1003.62(a)(1), (b)(2), or (d)(2), representing at least 50 hours of pro bono legal services each year since the provider's most recent declaration under Sec. 1003.64(b)(2), or since the provider was included on the List, whichever was more recent. (4) Decision. If, after consideration of any response submitted by the provider, the Director determines that the provider is no longer qualified to remain on the List, the Director shall: (i) Remove the name of the provider from the List no later than in the next quarterly update; and (ii) Notify the provider of such removal in writing, at the address last provided to the Director by the provider or electronically. (5) Disciplinary Action. Removal from the List pursuant to Sec. 1003.65(a), (b), (c), or (d) shall be without prejudice to the authority to discipline a practitioner under EOIR's rules and procedures for professional conduct for practitioners listed in 8 CFR part 1003, subpart G. 0 9. Add Sec. 1003.66 to read as follows: Sec. 1003.66 Changes in information or status. All providers with a pending application or currently on the List must notify the Director in writing within ten business days if: (a) The provider's contact information has changed; (b) Any specific limitations in providing pro bono legal services under Sec. 1003.63(b)(4), (c)(2), or (d)(2) have changed; or (c) The provider is no longer eligible under Sec. 1003.62. PART 1240--PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES 0 10. The authority citation for part 1240 continues to read as follows: Authority: 8 U.S.C. 1103, 1182, 1186a, 1224, 1225, 1226, 1227, 1251, 1252 note, 1252a, 1252b, 1362; secs. 202 and 203, Pub. L. 105- 100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277, (112 Stat. 2681). 0 11. In Sec. 1240.10, revise paragraphs (a)(2) and (3) to read as follows: Sec. 1240.10 Hearing. (a) * * * (2) Advise the respondent of the availability of pro bono legal services for the immigration court location at which the hearing will take place, and ascertain that the respondent has received a list of such pro bono legal service providers. (3) Ascertain that the respondent has received a copy of appeal rights. * * * * * Sec. 1240.32 [Amended] 0 12. In Sec. 1240.32, amend paragraph (a) by removing the words ``Government, and of the availability of free legal services programs qualified under 8 CFR part 1003 and organizations recognized pursuant to Sec. 1292.2 of this chapter located in the district where his or her exclusion hearing is to be held; and shall ascertain that the applicant has received a list of such programs'' and adding, in their place, the words ``Government; advise him or her of the availability of pro bono legal services for the immigration court location at which the hearing will take place, and ascertain that he or she has received a list of such pro bono legal service providers''. Sec. 1240.48 [Amended] 0 13. In Sec. 1240.48, amend paragraph (a) by removing the words ``free legal services programs qualified under 8 CFR part 1003 and organizations recognized pursuant to Sec. 1292.2 of this chapter, located in the district where the deportation hearing is being held; ascertain that the respondent has received a list of such programs'' and adding, in their place, the words ``pro bono legal services for the immigration court location at which the hearing will take place; ascertain that the respondent has received a list of such pro bono legal service providers''. PART 1241--APPREHENSION AND DETENTION OF ALIENS ORDERED REMOVED 0 14. The authority citation for part 1241 continues to read as follows: Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1103, 1182, 1223, 1224, 1225, 1226, 1227, 1231, 1251, 1253, 1255, 1330, 1362; 18 U.S.C. 4002, 4013(c)(4). Sec. 1241.14 [Amended] 0 15. InSec. 1241.14, amend paragraph (g)(3)(i) by removing the words ``a list of free legal service providers,'' and adding, in their place, the words ``the List of Pro Bono Legal Service Providers for the immigration court at which the hearing is being held''. Dated: September 15, 2015. Sally Quillian Yates, Deputy Attorney General. [FR Doc. 2015-24017 Filed 9-29-15; 11:15 am] BILLING CODE 4410-30-P
![Federal Register / Vol. 80, No. 190 / Thursday, October 1, 2015 / Rules and Regulations 59503
DEPARTMENT OF JUSTICE II. Regulatory Background a law school clinical program; one was
This rule amends 8 CFR part 1003 by from the Director of the Immigration
Executive Office for Immigration revising §§ 1003.61 through 1003.66. It Program of the Legal Aid Society of
Review also amends 8 CFR parts 1240 and 1241 Rochester, New York; one was from a
by revising §§ 1240.10 and 1241.14, group of three law students; two were
8 CFR Parts 1003, 1240, and 1241 respectively. The rule provides the from individual commenters; and one
Director of EOIR or his or her designee was from an anonymous commenter.
[EOIR Docket No. 164P; A.G. Order No. with the authority to maintain the Below, the Department has summarized
3565–2015] quarterly List. See §§ 1003.61(a)(1), (b). the comments and explained the
The rule modifies the criteria for changes the Department has made in
RIN 1125–AA62 organizations,1 pro bono referral response. Because some comments
services,2 and attorneys to be placed on overlap and commenters raised multiple
List of Pro Bono Legal Service the List, stating in part that attorneys subjects, the comments are addressed by
Providers for Individuals in and organizations must provide at least topic rather than by reference to a
Immigration Proceedings 50 hours annually of pro bono legal specific commenter.
services at each immigration court A. The 50-Hour Requirement
AGENCY: Executive Office for
location where the attorney or
Immigration Review, Department of The Department received a number of
organization intends to be on the List.3
Justice. comments regarding the requirement, at
See § 1003.62. The rule also specifies
ACTION: Final rule. that an attorney can appear on the List §§ 1003.62(a)(1), (b)(1), and (d)(2), that
only under certain circumstances and each attorney and organization provide
SUMMARY: This final rule adopts, as at least 50 hours per year of pro bono
amended, the proposed rule entitled only if he or she cannot provide pro
bono services through or in association legal services at each immigration court
‘‘List of Pro Bono Legal Service location where the attorney or
Providers for Aliens in Immigration with an organization or pro bono
referral service. See § 1003.62(d). The organization intends to appear on the
Proceedings.’’ The final rule changes the List. The Department had posed four
name of the ‘‘List of Free Legal Service rule identifies the information that
organizations, pro bono referral services, questions: whether the requirement is
Providers,’’ maintained by the Executive too demanding for certain private
Office for Immigration Review (EOIR), and attorneys must provide to EOIR
when applying to be on the List. See attorneys; whether the requirement is
to the ‘‘List of Pro Bono Legal Service not demanding enough for
Providers’’ (List). It enhances the § 1003.63. Regarding the application
process, the rule states, in part, that the organizations; whether the standards for
eligibility requirements for providers to organizations and attorneys should
be included on the List. It authorizes the names of applicants meeting the
regulatory requirements will be posted differ from one another in any other
Director of EOIR, or his or her designee, way; and whether there are alternative
to place providers on the List and for public comments. See § 1003.63(f).
The rule also requires that, every three standards, for example relating to the
remove them from the List. The rule number or type of cases accepted, that
also allows the public to comment on years, providers on the List must certify
that they continue to meet the eligibility would be more appropriate measures of
eligible applicants and requires pro bono representation. See 79 FR
approved providers to certify their requirements. See § 1003.64(b)(2). In
addition, the rule specifies the 55665–66.
eligibility every 3 years.
procedures for removing providers from, 1. Attorneys
DATES: This rule is effective November
and reinstating them to, the List. See Three commenters addressed the
30, 2015. § 1003.65.
FOR FURTHER INFORMATION CONTACT: Jean
impact of the 50-hour requirement on
King, General Counsel, Executive Office III. Comments and Responses attorneys, with two supporting the
for Immigration Review, 5107 Leesburg As noted above, the Department requirement and one questioning it. Of
Pike, Suite 2600, Falls Church, VA received seven comments in response to the supporters, one stated that the
22041, telephone (703) 305–0470 (not a the proposed rule. One comment was requirement was ‘‘appropriate’’ for
toll-free call). from the Executive Director of the attorneys, and the other noted that the
Catholic Legal Immigration Network; requirement is consistent with the
SUPPLEMENTARY INFORMATION: American Bar Association’s Model Rule
one was from a professor and director of
I. Public Participation of Professional Conduct (ABA Model
1 The rule, at § 1003.61(a)(3), defines an Rule) 6.1, which states that ‘‘[a] lawyer
On September 17, 2014, the should aspire to render at least (50)
‘‘organization’’ as ‘‘[a] non-profit religious,
Department published in the Federal charitable, social service, or similar group hours of pro bono publico legal services
Register a rule proposing to amend established in the United States.’’ Organizations can per year.’’ 4 The commenter who
EOIR’s regulations governing the list of apply to be recognized by EOIR pursuant to 8 CFR
questioned the requirement raised
organizations, pro bono referral services, part 1292. This rule distinguishes between
organizations that have been recognized by EOIR concerns that it would be too
and attorneys available to represent and other, non-recognized, organizations. burdensome for solo or small-firm
individuals in immigration court on a 2 The rule, at § 1003.61(a)(4), defines a ‘‘pro bono
practitioners. This commenter offered
pro bono basis. 79 FR 55662. The referral service’’ as ‘‘[a] referral service, offered by
an example of a solo practitioner in
comment period ended November 17, a non-profit group, association, or similar
Arkansas representing a detained client
2014. The Department received seven organization established in the United States that
assists persons in locating pro bono representation before the Oakdale, Louisiana,
comments. Both in response to these
tkelley on DSK3SPTVN1PROD with RULES5
by making case referrals to attorneys or Immigration Court, then appearing
comments and as the result of further organizations that are available to provide pro bono
before the Memphis, Tennessee,
consideration, the Department has representation.’’
Immigration Court after the client is
3 As previously noted at 79 FR 55662 n.2, the
decided to revise the proposed rule as
term ‘‘immigration court location’’ refers both to the
discussed below. Except for these immigration courts and to facilities where hearings 4 In the Notice of Proposed Rulemaking at 79 FR
revisions, the proposed rule is adopted may be conducted but where no EOIR personnel 55665 n.8, the Department cited ABA Model Rule
without change. have a permanent duty station. 6.1 in support of the 50-hour requirement.
VerDate Sep<11>2014 21:33 Sep 30, 2015 Jkt 238001 PO 00000 Frm 00001 Fmt 4701 Sfmt 4700 E:\FR\FM\01OCR5.SGM 01OCR5](https://thefederalregister.org/doc/80_FR_59693/page/1.svg)
![59504 Federal Register / Vol. 80, No. 190 / Thursday, October 1, 2015 / Rules and Regulations
released. To be on the List for both the requirement, but corresponding annually, and ABA Model Rule 6.1
Oakdale and Memphis courts, the language did not appear in the proposed states that lawyers should aspire to
attorney would have to perform 100 rule’s text. perform at least 50 hours of pro bono
hours of pro bono representation legal services annually. See 79 FR
2. Organizations
annually, or 50 before each court. Also, 55665. In addition, the rule does not
this commenter argued, the paperwork Three commenters addressed the require that each of an organization’s
would be burdensome for a solo or impact of the 50-hour requirement on attorneys and representatives meet the
small-firm practitioner, and such an organizations. One supported the 50-hour requirement, but rather that the
attorney’s ability to represent clients pro requirement, stating that it was organization as a whole perform 50
bono in non-immigration proceedings appropriate for organizations. The other hours of pro bono legal services
could be impacted. two recommended that EOIR amend the annually in order to be included on the
The final rule keeps the 50-hour requirement, noting that organizations List. The Department further disagrees
requirement with respect to attorneys. often charge nominal fees for with exempting recognized
The Department agrees with the representing clients. One of these two organizations from the 50-hour
commenters who supported the recommended dropping the 50-hour requirement. The fact that a recognized
requirement. While the Department requirement for organizations organization is prohibited from charging
appreciates the other commenter’s recognized by EOIR under 8 CFR part more than nominal fees does not
concerns, the 50-hour requirement for 1292. This commenter argued that establish that the organization is
attorneys is essential to the rule. As recognized organizations are less likely available to represent clients pro bono.
noted in the Notice of Proposed than private attorneys or other As the rule makes clear at
Rulemaking, EOIR has consistently organizations to abuse their placement § 1003.61(a)(2), representation for a fee,
received complaints that certain on the List, as they have already even a nominal fee, is not pro bono
attorneys on the List do not accept established to the satisfaction of the representation. Though the Department
significant numbers of pro bono cases. Board of Immigration Appeals that they appreciates that some recognized
79 FR 55663–64. The 50-hour charge only nominal fees.5 This organizations concentrate on
requirement will help ensure that commenter also stated that many representing clients before DHS, the
attorneys listed as providing pro bono recognized organizations would have purpose of the List is to inform
legal services in a specific location are difficulty meeting the requirement individuals in immigration court
actually available to do so. This rule because, based on community needs, proceedings of providers who perform
does not impose any limits on an they concentrate on representing clients significant pro bono services before the
attorney’s pro bono practice, as such, before the Department of Homeland courts.
and the 50-hour requirement is Security (DHS) instead of the Though the final rule keeps the 50-
applicable only with respect to immigration courts. The other of the two hour requirement for organizations, the
attorneys who choose to seek inclusion recommended dropping the requirement Department has, in light of comments
by name on the List. for all organizations or, failing that, for that some organizations do not have the
With respect to the hypothetical recognized organizations. Alternatively, resources to represent clients in
Arkansas solo practitioner wishing to this commenter recommended lowering immigration court proceedings without
appear on the List for both the Oakdale the requirement to 25 hours annually. In charging at least a nominal fee, modified
and Memphis courts, if it would be addition, the first of the two argued that the requirement to allow organizations
difficult for him or her to perform 50 the 50-hour requirement for to count pro bono services in some cases
hours of pro bono service annually at organizations could ‘‘hinder access . . . where the organization did not actually
each court, then he or she likely lacks to emergency pro bono services.’’ As an represent the client. Specifically, the
the resources to provide pro bono example, this commenter noted that, Department has amended
services regularly before both courts, following the 2014 influx to the United §§ 1003.62(a)(1) and (b)(1) to allow
and therefore should not be on the List States of individuals from Central organizations to count, toward the
for both courts. The Department does America, organizations and attorneys requirement, time an organization’s
not believe that the 50-hour requirement from around the country provided pro attorneys and representatives spent
imposes an undue paperwork burden, as bono legal services to recent entrants providing pro bono legal services in
attorneys regularly track the time they detained in Artesia, New Mexico. cases the organization eventually
spend on individual cases. It is possible The final rule keeps the requirement referred to an outside provider for pro
that some attorneys wishing to be on the that both recognized and non- bono representation before the
List would have to reduce the pro bono recognized organizations provide 50 immigration court location. In the
services they provide in non- hours annually of pro bono legal proposed rule, by contrast,
immigration proceedings. However, the services at each immigration court organizations could count only time
Department’s overriding concern is that location where the organization appears spent on cases where an attorney or
attorneys on the List be available to on the List. The Department disagrees representative of the organization
provide pro bono representation before with reducing the requirement to 25 represented the client. In addition, as
EOIR. hours annually. As indicated in the with the provision addressing attorneys,
Though the 50-hour requirement will Notice of Proposed Rulemaking, a the Department has amended
remain substantively unchanged, the number of state bar associations §§ 1003.62(a)(1) and (b)(1) to clarify
Department has amended recommend that attorneys perform a that, ‘‘[w]hen an attorney or
§ 1003.62(d)(2) to clarify that ‘‘[t]he minimum of 50 hours of pro bono work representative of [an] organization
attorney may count, toward the represents [an] individual pro bono . . .
tkelley on DSK3SPTVN1PROD with RULES5
requirement, both out-of-court 5 Under 8 CFR 1292.2(a), in order to be the organization may count, toward the
preparation time and in-court time.’’ recognized by EOIR, an organization ‘‘must 50-hour requirement, the attorney’s or
The Department had explained, in the establish to the satisfaction of the [Board of representative’s out-of-court preparation
Immigration Appeals] that . . . (1) [i]t makes only
preamble of the Notice of Proposed nominal charges and assesses no excessive time and in-court time.’’
Rulemaking at 79 FR 55665, that membership dues for persons given assistance Regarding pro bono legal services
preparation time counts toward the . . . .’’ offered temporarily following events
VerDate Sep<11>2014 21:33 Sep 30, 2015 Jkt 238001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\01OCR5.SGM 01OCR5](https://thefederalregister.org/doc/80_FR_59693/page/2.svg)
![Federal Register / Vol. 80, No. 190 / Thursday, October 1, 2015 / Rules and Regulations 59505
such as the 2014 influx of individuals referral service. This commenter information and counseling and to
from Central America, the Department ‘‘generally support[ed]’’ the requirement increasing representation rates before
encourages such services and does not but expressed two concerns. First, this the immigration courts. In line with the
believe they would be hindered by the commenter stated that, ‘‘especially in commenter’s suggestions, EOIR may
rule. The rule does not impose limits on rural and isolated immigration courts, explore other ways to inform
an organization’s ability to offer pro the List has traditionally served the individuals in proceedings about paid
bono services before any immigration beneficial, though unintended, purpose legal services, including providing
court location, including those at which of identifying local attorneys who were contact information for bar associations
the organization does not appear on the willing to represent respondents,’’ and through which they may be referred to
List. The List, which EOIR anticipates that this ‘‘unintended function of the local immigration counsel. In addition,
updating quarterly,6 is not designed to List is actually critical to access to organizations are welcome to contact
publicize services offered for less than counsel in those immigration courts.’’ EOIR directly, after the rule takes effect,
three months at a time. However, the This commenter concluded that with observations regarding the rule’s
Department encourages organizations to ‘‘[e]liminating all the private attorneys effects on organizations’ operations and
publicize any such short-term services from the List (which will happen in on access to counsel in the immigration
in collaboration with organizations or most courts that have at least one courts.
pro bono referral services already nonprofit organization providing pro
operating in the relevant location. bono legal services) will result in an C. Renaming the List
Should the need arise, EOIR may overall reduction in access to counsel’’ Three commenters addressed the fact
explore how to assist with publicizing in some locations, ‘‘unless EOIR takes that the proposed rule, at § 1003.61(b),
such services as well. other reasonable steps to provide renamed the ‘‘Free Legal Services
information to the respondents Providers List’’ as the ‘‘List of Pro Bono
3. Alternatives to the 50-Hour regarding how they may locate attorneys
Requirement Legal Service Providers.’’ One
willing to represent them before the commenter agreed with the name
One commenter responded to the court.’’ (Emphasis omitted). Second, this change, stating that the use of the word
Department’s question about alternative commenter argued that ‘‘[a]nother ‘‘free’’ ‘‘implies that there is no financial
ways to measure pro bono services. This consequence of eliminating private responsibility for any client wishing to
commenter was opposed to requiring a attorneys from the List is that the receive legal services.’’ The second
provider to accept a specific number of nonprofit organizations remaining on commenter stated that, while the term
pro bono cases, as some cases require the List will experience a much greater ‘‘pro bono’’ is understood by attorneys
dramatically more work than others. volume of calls to their organizations.’’ and ‘‘may provide clarity to members of
However, this commenter stated that This commenter stated that ‘‘EOIR has the bar,’’ its meaning may not be clear
‘‘[a] measurement regarding the types of made great progress in supporting pro to individuals in immigration court
pro bono cases accepted may . . . be bono representation,’’ but ‘‘must proceedings. In light of this fact, and
appropriate if it is done correctly,’’ provide more resources to support the because many pro bono providers also
primarily because ‘‘such a requirement organizations remaining on the List on charge fees to some clients, this
might encourage each organization to whom the entire burden of sustaining commenter suggested that EOIR use a
accept a variety of cases, rather than pro bono representation in immigration title such as ‘‘Free and Low-Cost Legal
allowing a single attorney or court will now fall.’’ Service Providers.’’ The third
organization to take on every simple The Department believes that the
commenter ‘‘generally support[ed]’’ the
case.’’ The Department agrees that, provision at issue is necessary. To the
use of the term ‘‘pro bono,’’ but, like the
generally speaking, it is beneficial for extent that the List functions to inform
second commenter, cautioned that this
each organization and attorney on the individuals in immigration court
proceedings of attorneys who will term may be unclear to some, and
List to accept a variety of pro bono recommended ‘‘includ[ing] a sentence
cases. However, the Department represent them for a fee, this function is,
as the commenter noted, unintended. explaining the purpose for which the
declines to incorporate, into the final services are provided.’’
rule, any requirement concerning the The List’s intended function is to inform
such individuals of providers who will The final rule retains the name ‘‘List
types of cases providers accept, as the
represent them pro bono. The provision of Pro Bono Legal Service Providers.’’
nature of cases varies between
at issue, drafted in light of complaints As noted in the Notice of Proposed
immigration court locations. In
that certain attorneys on the List do not Rulemaking at 79 FR 55663, the use of
addition, it can sometimes be valuable
accept significant numbers of pro bono the term ‘‘pro bono’’ tracks the language
for providers to specialize in particular
cases,7 will help ensure that attorneys in the Immigration and Nationality Act.
types of cases, thereby building their
who do not accept significant numbers See Immigration and Nationality Act
expertise.
of pro bono cases will not appear on the (INA or Act) sections 208(d)(4)(B)
B. Restrictions on Private Attorneys on List. (requiring EOIR to provide asylum
the List However, the Department applicants with a list of providers
One commenter responded to the acknowledges the concern that, once the available ‘‘on a pro bono basis’’),
proposed rule’s provision, at rule takes effect, individuals in 239(b)(2) (requiring EOIR to compile
§ 1003.63(d)(3), that an individual immigration court proceedings in some, lists of providers ‘‘who have indicated
attorney who does not work for a pro particularly rural, locations may be less their availability to represent pro bono
bono organization (‘‘private attorney’’) informed than they currently are of paid aliens in [removal] proceedings’’).
legal services, as well as the concern However, the Department acknowledges
tkelley on DSK3SPTVN1PROD with RULES5
cannot appear on the List if he or she
can provide pro bono legal services that organizations on the List could that some individuals in immigration
through or in association with a receive more inquiries than they have court proceedings will not understand
nonprofit organization or a pro bono the capacity to handle. EOIR is this term. Therefore, the Department
committed to improving access to legal will consider including, on the List, a
6 See § 1003.61(b) (stating that the List ‘‘shall be short statement clearly explaining the
updated not less than quarterly’’). 7 See 79 FR 55663–64. List’s nature and purpose.
VerDate Sep<11>2014 21:33 Sep 30, 2015 Jkt 238001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\01OCR5.SGM 01OCR5](https://thefederalregister.org/doc/80_FR_59693/page/3.svg)
![59506 Federal Register / Vol. 80, No. 190 / Thursday, October 1, 2015 / Rules and Regulations
D. Fees revised §§ 1003.64(b) and 1003.65(a)(2), as their languages spoken or translation
One commenter suggested that (d)(2), (d)(3), and (d)(4)(ii), pertaining to services offered.
providers be required to certify, under various written communications from One commenter, while noting that
EOIR to providers, to state that they can ‘‘the word ‘alien’ has long been used to
the penalty of perjury, whether they
be sent electronically, in addition to by describe immigrants’’ and appears in the
charge fees to the majority of clients,
mail. No notice-and-comment period is Immigration and Nationality Act,
and that the List should include
required for the revisions described in ‘‘encourage[d] EOIR to refrain from
information on the extent to which each
this paragraph, as they pertain to using the term . . . wherever possible.’’
provider charges fees. The Department
‘‘agency organization, procedure, or The Department has deleted the term
declines to adopt the commenter’s
practice’’ under 5 U.S.C. 553(b). ‘‘alien’’ from the rule’s title and, where
suggestion in the final rule. The
possible, from the regulatory text, and
Department appreciates that there may In the meantime, to assist prospective has avoided using the term in this
be benefits to including, on the List, and current providers, EOIR has created preamble where possible. The use of the
information on fees. However, the a form—Optional Form EOIR–56, term ‘‘alien’’ is often necessary in the
percentage of clients to whom a Request to be Included on the List of Pro Department’s regulations governing
provider charges fees may well Bono Legal Service Providers for immigration proceedings given that, as
fluctuate, and it could prove difficult for Individuals in Immigration the commenter acknowledges, the term
EOIR to verify the accuracy of providers’ Proceedings—that organizations, pro is used throughout the immigration
representations. Though the Department bono referral services, and attorneys statutes. However, in this final rule, the
declines, at this time, to require will be able to use to apply to appear on Department has refrained from using
providers to submit information on fees, the List, and to certify their continuing ‘‘alien’’ as a generic term for a person in
the Department may, in the future, eligibility, once the final rule takes immigration court proceedings, given
consider whether information on fees effect. The form will be available in an that individuals in immigration court
should be incorporated into the List. electronic fillable format. However, proceedings can assert that they are
E. Filings and Communications unless EOIR begins accepting electronic United States citizens.9
submissions, the completed form will One commenter was concerned
One commenter suggested that, whether providers’ periodic
instead of requiring paper applications, need to be submitted to EOIR on paper.
Although EOIR will not require declarations of eligibility under
EOIR should ‘‘look for alternative § 1003.64(b)(2) would be available for
electronic methods through which to prospective and current providers to use
Optional Form EOIR–56, the comment or review by the public, given
make an initial application, submit that they would contain clients’ alien
comments or complaints, and apply for Department has deleted from
§ 1003.63(a) the statement that ‘‘[a] form registration numbers. The commenter
continued participation.’’ The ‘‘encourage[d] EOIR to clearly state in
Department agrees that electronic filings is not required in order to apply to be
included on the List.’’ This change will the [final rule] that the declaration . . .
and communications would be shall be maintained in a separate file
beneficial. Beginning when the final allow EOIR greater flexibility, as it gains
and can only be reviewed by EOIR staff
rule takes effect, EOIR will accept experience administering the List under
or the applicant.’’ Although EOIR
electronic comments and this final rule, to further streamline the
understands the commenter’s concern,
recommendations from the public application process in the future.
it is unnecessary to state, in the
pertaining to applications to appear on F. Other Comments regulation, that providers’ periodic
the List. The Department has revised declarations of eligibility can be
§ 1003.63(f) to make clear that such One commenter, noting the ‘‘language reviewed only by EOIR staff or the
electronic comments and barrier[s]’’ and ‘‘social isolation of applicant. EOIR appreciates the
recommendations are permitted. In indigent aliens,’’ asked whether either importance of protecting, from release to
addition, EOIR is considering, in the ‘‘translation services [would] be the public, alien registration numbers,
future, permitting prospective and provided,’’ or whether a ‘‘provider and other personally identifiable
current providers to electronically [would] be required to work in both information,10 pertaining to individuals
submit a wide range of documents. Such English and the language spoken by the in EOIR proceedings. Neither
documents could include applications indigent alien.’’ This rule setting forth § 1003.64(b)(2) nor any other provision
to appear on the List, declarations that the requirements for inclusion on the in the rule permits EOIR to release
a provider remains qualified to appear List does not require that providers
on the List, requests to be removed from speak particular languages or supply 9 For example, immigration judges conduct
the List, responses to inquiries and translation services.8 EOIR provides claimed status review proceedings, in which
notices from EOIR, and notifications of individuals who are deemed by DHS to be subject
interpreters at immigration court to expedited removal from the United States under
changes in information or status. EOIR hearings if the individual in INA 235(b)(1) can argue, among other things, that
is also considering communicating with proceedings lacks adequate command of they are United States citizens. See 8 CFR
prospective and current providers English to fully understand and 1235.3(b)(5).
10 ‘‘Personally identifiable information’’ is
electronically. In the future, EOIR may participate in the proceedings. The ‘‘information which can be used to distinguish or
electronically transmit documents such Department encourages prospective trace an individual’s identity, such as their name,
as decisions to grant or deny providers to note, in their applications social security number, biometric records, etc.
applications to appear on the List, to appear on the List, information such alone, or when combined with other personal or
inquiries to providers in response to identifying information which is linked or linkable
to a specific individual, such as date and place of
complaints, notices that a provider has
tkelley on DSK3SPTVN1PROD with RULES5
8 The Department notes, however, that the birth, mother’s maiden name, etc.’’ Office of
automatically been removed from the existing EOIR disciplinary rules, which are Management and Budget Memorandum for the
List or that the Director intends to applicable to all attorneys and accredited Heads of Executive Departments and Agencies,
remove a provider from the List, and representatives appearing before EOIR on behalf of Safeguarding Against and Responding to the Breach
any client, include a general provision that ‘‘[i]t is of Personally Identifiable Information, May 22,
decisions to remove a provider from the the obligation of the practitioner to take reasonable 2007, at 1 n. 1, at http://www.whitehouse.gov/sites/
List. In anticipation of such electronic steps to communicate with the client in a language default/files/omb/memoranda/fy2007/m07–16.pdf
communications, the Department has that the client understands.’’ 8 CFR 1003.102(r). (last visited September 11, 2015).
VerDate Sep<11>2014 21:33 Sep 30, 2015 Jkt 238001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\01OCR5.SGM 01OCR5](https://thefederalregister.org/doc/80_FR_59693/page/4.svg)
![Federal Register / Vol. 80, No. 190 / Thursday, October 1, 2015 / Rules and Regulations 59507
providers’ periodic declarations of Immigration Appeals’’). In light of this accredited representative who will not
eligibility, or any information contained requirement, the Department has enter appearances with EOIR, but who
in them. By contrast, § 1003.63(f)(1) revised § 1003.63(b)(2) to provide that, will perform pro bono legal services in
directs EOIR to publicly release the in an application to appear on the List, cases pending before EOIR other than
names of applicants meeting the an organization must declare that ‘‘every representing clients,13 the organization
requirements to appear on the List, and attorney and accredited representative is not required to declare that the
to make copies of applications available who will represent clients before EOIR attorney or accredited representative is
to the public upon request. Although on behalf of the organization is registered with EOIR. However, the
the declarations could be the subject of registered to practice before EOIR under organization must declare that he or she,
requests for release under the Freedom § 1292.1(f).’’ This provision replaces the like an attorney or accredited
of Information Act (FOIA), EOIR’s proposed rule’s requirement that an representative who will represent
policy, when releasing information organization declare that ‘‘every clients pro bono, meets the
pursuant to a FOIA request, is to redact attorney who will provide pro bono requirements of § 1003.63(b)(3).14
personally identifiable information legal services before EOIR on behalf of The Department has made minor
pertaining to individuals in EOIR the organization . . . [i]s eligible to revisions to § 1003.63(f), which relates
proceedings unless the individual in the practice law in and is a member in good to the notice-and-comment period for
proceedings has consented in writing to standing of the bar of’’ a state or other applications. The revised provision
the release of this information.11 jurisdiction. The deleted requirement is states that applications shall be publicly
unnecessary given that, to register with posted following ‘‘review of the
IV. Other Revisions EOIR, an attorney must list all the applications’’ by EOIR, as opposed to
In the final rule, the Department has jurisdictions in which he or she is their receipt. Before posting an
revised § 1003.63(a) to simplify and licensed to practice law. See 8 CFR application, EOIR will review it to
clarify the application process. 1292.1(f) (stating that ‘‘[t]he [EOIR] ensure that the application meets the
Specifically, the Department has deleted Director or his designee may regulatory requirements. For clarity, the
the proposed requirement, at administratively suspend from practice revised provision specifies that ‘‘upon
§ 1003.63(a)(5), that an application be before the immigration judges and the request a copy of each application shall
served on the court administrator for Board [of Immigration Appeals] any be made available for public review,’’ as
each immigration court location where attorney or accredited representative opposed simply to ‘‘for review.’’ The
the provider intends to perform pro who fails to provide . . . bar admission revised provision no longer specifies
bono legal services. The Department has information (if applicable)’’). For that the copy made available shall be
concluded that this requirement is attorneys applying to appear on the List, ‘‘date stamped.’’ To simplify the time
unnecessary, as court administrators can the Department has revised period for commenting, the revised
be informed of prospective providers § 1003.63(d)(5) to provide that, instead provision states that comments are due
through other means. The Department of providing the bars in which he or she ‘‘within 30 days from the first date the
has also deleted, as unnecessary, the is a member in good standing, an name of the applicant is publicly
proposed requirement, at attorney must provide his or her EOIR posted,’’ as opposed to ‘‘15 days from
§ 1003.63(a)(4), that an envelope registration number. the last date’’ of the posting
containing an application be marked Under the revised § 1003.63(b)(2), an (applications must be posted for 15
‘‘Application for List of Pro Bono Legal organization, in its application to appear days). Finally, the revised provision
Service Providers.’’ Finally, the on the List, is only required to declare states that comments must include the
Department has revised § 1006.63(a)(2) ‘‘[t]hat every attorney and accredited commenter’s name and address.
to specify that, in an application, a representative who will represent clients The Department has made one
prospective provider must state how the pro bono before EOIR on behalf of the revision to § 1003.64(b)(2). The revision
provider’s contact information, in organization is registered’’ with EOIR. relates to the requirement that, in a
addition to the provider’s name, should (Emphasis added.) By contrast, the declaration of continued eligibility, a
be set forth on the List. Department has revised § 1003.63(b)(3) provider must include alien registration
The Department has revised the to state that, in its application, an numbers of pro bono clients. The
application requirements at § 1003.63(b) organization must declare ‘‘[t]hat no revised provision requires that an
and (d) to reflect EOIR’s registration attorney or representative who will organization must provide, for each
requirements for attorneys and provide pro bono legal services on case, either ‘‘the name of the
accredited representatives. Beginning behalf of the organization in cases organization’s attorneys or
December 11, 2013, EOIR has required pending before EOIR: (i) is under any
attorneys and accredited representatives order suspending, enjoining, restraining, 13 As noted in § 1003.62(a)(1) and (b)(1), as
to register electronically with EOIR in disbarring, or otherwise restricting him revised, performing other pro bono legal services
could include conducting an intake interview or
order to practice before the immigration or her in the practice of law; or (ii) is mentoring an attorney or representative to whom a
courts and the Board of Immigration the subject of an order of disbarment case is referred.
Appeals. See 78 FR 28124 (May 14, under § 1003.101(a) or suspension 14 The regulations permit individuals other than
2013); see also 8 CFR 1292.1(f) (stating under § 1003.101(a)(2) . . . .’’ 12 attorneys and accredited representatives—for
that ‘‘[t]he [EOIR] Director or his (Emphasis added.) Accordingly, if an example, law students and law graduates—to
represent clients before EOIR in some situations.
designee is authorized to register, and organization has an attorney or See 8 CFR 1292.1(a). However, only attorneys and
establish procedures for registering, accredited representatives must register with EOIR.
attorneys and accredited representatives 12 The Department has revised the underlying See 8 CFR 1292.1(f). Accordingly, the requirement
tkelley on DSK3SPTVN1PROD with RULES5
. . . as a condition of practice before requirements at § 1003.62(a)(3) and (b)(3) at § 1003.63(b)(2) applies only to attorneys and
(§ 1003.62(a)(3) and (b)(4) of the proposed rule) to accredited representatives. Thus, an organization is
immigration judges or the Board of state that ‘‘[n]o attorney or representative who will not required to declare that any other
provide pro bono legal services on [an] representatives who will represent clients pro bono
11 See 5 U.S.C. 552(b)(6) (exempting from release organization’s behalf in cases pending before EOIR on its behalf—for example, law students or
‘‘personnel and medical files and similar files the is the subject of an order of disbarment under graduates—are registered with EOIR. However, the
disclosure of which would constitute a clearly § 1003.101(a)(1) or suspension under requirement at § 1003.63(b)(3) applies to all
unwarranted invasion of personal privacy’’). § 1003.101(a)(2).’’ representatives, even those who are not accredited.
VerDate Sep<11>2014 21:33 Sep 30, 2015 Jkt 238001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\01OCR5.SGM 01OCR5](https://thefederalregister.org/doc/80_FR_59693/page/5.svg)
![59508 Federal Register / Vol. 80, No. 190 / Thursday, October 1, 2015 / Rules and Regulations
representatives who provided the regulation more readable, the system of records notice that includes,
representation or other pro bono legal Department has made a few minor, non- among other things, ‘‘each routine use of
services, or the name of the attorney, substantive, revisions not referenced the records contained in the system,
representative, or organization the case here. including the categories of users and the
was referred to for pro bono legal purpose of such use.’’ 5 U.S.C.
V. Notice-and-Comment Requirements
services.’’ This information is necessary 552a(e)(4)(D). The Department will
for EOIR to verify organizations’ The revisions to the proposed rule do publish, in the Federal Register, a
compliance with the 50-hour not require a new notice-and-comment system of records notice that specifies
requirement. period. As noted above, the revisions the routine uses, in line with the
The Department has simplified pertaining to electronic filings and provisions of this regulation, under
§ 1003.66, relating to when a provider communications, at §§ 1003.63(f), which EOIR will disclose the
must inform EOIR of changes in 1003.64(b), and 1003.65(a)(2), (d)(2), information collected under this
information or status. Under the revised (d)(3), and (d)(4)(ii), pertain to ‘‘agency regulation.
provision, providers must contact EOIR organization, procedure, or practice’’
in three situations: if the provider’s under 5 U.S.C. 553(b). The other revised VII. Regulatory Requirements
contact information has changed; if any provisions are logical outgrowths of A. Regulatory Flexibility Act
specific limitations to providing pro those in the proposed rule. See, e.g.,
bono legal services have changed; and if Environmental Defense Center v. U.S. In accordance with the Regulatory
the provider is no longer eligible to be E.P.A., 344 F.3d 832, 851–52 (9th Cir. Flexibility Act (5 U.S.C. 605(b)), this
included on the List under § 1003.62. 2003); American Water Works Ass’n v. rule will not have a significant
This section previously contained E.P.A., 40 F.3d 1266, 1274 (D.C. Cir. economic impact on a substantial
additional provisions, for example 1994). number of small entities. Some small
requiring organizations to inform EOIR entities, such as non-profit
VI. Privacy Act
of any change in the professional status organizations or small law offices, will
of any attorney or representative The Privacy Act of 1974 states that, be affected by this rule. Organizations or
providing pro bono legal services before except in certain circumstances, ‘‘[n]o private attorneys may be removed from
EOIR. The simplified provision is agency shall disclose any record which the List of Pro Bono Legal Service
clearer, and less burdensome on is contained in a system of records by Providers if they are no longer qualified
providers, than the previous version, any means of communication to any to be on the List under this final rule.
while still ensuring that EOIR has person, or to another agency, except Likewise, those who wish to have their
adequate information about providers. pursuant to a written request by, or with names included on this List will be
Finally, for flexibility, the Department the prior written consent of, the affected as they will have to
has revised §§ 1003.61, 1003.62, and individual to whom the record pertains demonstrate their eligibility to have
1003.63 to refer to recognition of . . . .’’ 5 U.S.C. 552a(b). A ‘‘system of their names listed.
organizations under 8 CFR part 1292, records’’ is ‘‘a group of any records
However, this rule has no effect on
instead of § 1292.2 For precision, under the control of any agency from
the ability of organizations or private
§ 1003.62(a)(2) has been revised to refer which information is retrieved by the
attorneys to represent pro bono clients,
to a ‘‘representative accredited under name of an individual or by some
or any other clients, and it applies only
part 1292 of this chapter to practice identifying number, symbol, or other
with respect to organizations and
before the immigration courts and the identifying particular assigned to the
attorneys who choose to seek to be
Board of Immigration Appeals,’’ instead individual.’’ 5 U.S.C. 552a(a)(5). An
included on the List. Application for
of simply an ‘‘accredited ‘‘individual’’ is ‘‘a citizen of the United
representative.’’ The Department has placement on the List is completely
States or an alien lawfully admitted for
deleted the provision, at § 1003.62(b)(1) voluntary and does not confer any rights
permanent residence.’’ 5 U.S.C.
of the proposed rule, that, to be or benefits on such organizations or law
552a(a)(2). As a policy matter, where a
included on the List, a non-recognized offices. Placement on the List does not
system of records contains records
organization must be ‘‘established in the constitute government endorsement of a
pertaining both to ‘‘individuals’’ and to
United States.’’ Upon reflection, this particular entity or private attorney; nor
people or entities not covered by the
provision was unnecessary, as is the List to be used for advertising or
Privacy Act, EOIR treats all the records
§ 1003.61(a)(3) defines an soliciting. Rather, the purpose of the
as subject to the Privacy Act. Thus,
‘‘organization’’ as ‘‘[a] non-profit List is to notify individuals in
EOIR will extend administrative Privacy
religious, charitable, social service, or immigration court proceedings that
Act protections to the records collected
similar group established in the United these entities or private attorneys are
under this regulation even though the
States.’’ The Department has revised available to provide uncompensated
organizations, pro bono referral services,
§ 1003.62(b)(1) of the final rule legal services without any direct or
and attorneys the records pertain to are
(§ 1003.62(b)(2) of the proposed rule) to indirect remuneration (other than filing
not all ‘‘individuals’’ under the Privacy
refer to an ‘‘attorney or representative,’’ fees or photocopying and mailing
Act.15
as opposed simply to an attorney. As expenses).
One of the circumstances in which an
noted above, individuals other than agency can disclose records protected B. Unfunded Mandates Reform Act of
attorneys can, in some circumstances, by the Privacy Act is ‘‘for a routine use,’’ 1995
be authorized to provide representation which is a ‘‘use . . . for a purpose
on behalf of an organization. See 8 CFR which is compatible with the purpose This rule will not result in the
1292.1(a). For consistency with the rest expenditure by State, local, and tribal
tkelley on DSK3SPTVN1PROD with RULES5
for which [the record] was collected.’’ 5
of the rule, § 1003.65(d)(3) has been U.S.C. 552a(a)(7), (b)(3). An agency that governments, in the aggregate, or by the
revised to refer to ‘‘pro bono legal maintains a system of records must private sector of $100 million or more
services’’ instead of simply ‘‘pro bono publish, in the Federal Register, a in any one year and also will not
services.’’ significantly or uniquely affect small
In addition, to accommodate the 15 Administrative Privacy Act protections do not governments. Therefore, no actions were
revisions described above, and to make include the civil remedies under 5 U.S.C. 552a(g). deemed necessary under the provisions
VerDate Sep<11>2014 21:33 Sep 30, 2015 Jkt 238001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\01OCR5.SGM 01OCR5](https://thefederalregister.org/doc/80_FR_59693/page/6.svg)
![59510 Federal Register / Vol. 80, No. 190 / Thursday, October 1, 2015 / Rules and Regulations
cases the provider rendered pro bono 2 of 1950; 3 CFR, 1949–1953 Comp., p. 1002; (c) Qualification. An organization, pro
legal services each year, would not be section 203 of Pub. L. 105–100, 111 Stat. bono referral service, or attorney
subject to public review and would be 2196–200; sections 1506 and 1510 of Pub. L. qualifies to be included on the List if the
106–386, 114 Stat. 1527–29, 1531–32; section eligibility requirements under § 1003.62
subject to applicable privacy laws.
1505 of Pub. L. 106–554, 114 Stat. 2763A–
EOIR currently uses appropriate and the application procedures under
326 to –328.
information technology to reduce § 1003.63 are met.
burden and improve data quality, § 1003.1 [Amended] (d) Organizations. Approval of an
agency efficiency, and responsiveness to organization’s application to be
■ 2. Amend § 1003.1 by removing and included on the List under this subpart
the public. Under this rule, EOIR will
reserving paragraph (b)(11). is not equivalent to recognition under
continue to do so to the maximum
extent practicable and will explore ■ 3. Revise the heading for subpart E to part 1292 of this chapter. Recognition
implementing technology to facilitate read as follows: under part 1292 of this chapter does not
information collections. EOIR will constitute a successful application for
Subpart E—List of Pro Bono Legal purposes of the List.
collect the information for any person or
Service Providers
entity seeking to be included on EOIR’s ■ 5. Revise § 1003.62 to read as follows:
List of Pro Bono Legal Service ■ 4. Revise § 1003.61 to read as follows: § 1003.62 Eligibility.
Providers. Under the current regulation,
it is estimated that it takes a total of 17 § 1003.61 General provisions. (a) Organizations recognized under
hours annually to provide the required part 1292. An organization that is
(a) Definitions—(1) Director. Director
information (50 applicants per year at recognized under part 1292 of this
means the Director of the Executive
20 minutes per application). chapter is eligible to apply to have its
Office for Immigration Review (EOIR),
Under the rule, it is estimated that name included on the List if the
pursuant to 8 CFR 1001.1(o), and shall
129 applicants will file applications organization meets the requirements in
also include any office or official within
each year for the first two years (phase- paragraphs (a)(1) through (3) of this
EOIR to whom the Director delegates
in period) and take an average of 30 section.
authority with respect to subpart E of (1) The organization will provide a
minutes for each application, resulting this part.
in an estimated total of 65 hours each minimum of 50 hours per year of pro
(2) Pro bono legal services. Pro bono bono legal services to individuals at
year. After the first two years, it is legal services are those uncompensated
estimated that there will be 93 each immigration court location where
legal services performed for indigent the organization intends to be included
applicants per year, expending an individuals or the public good without
average of 30 minutes for each on the List, in cases where an attorney
any expectation of either direct or or representative of the organization, or
application, resulting in an estimated indirect remuneration, including
total of 47 hours each year. This would an attorney or representative to whom
referral fees (other than filing fees or the organization has referred the case for
be an increase from the current photocopying and mailing expenses), pro bono representation, files a Form
estimated annual hours by 48 hours although a representative may be EOIR–28 Notice of Entry of Appearance
annually for the two-year phase-in regularly compensated by the firm, as Attorney or Representative before the
period and 30 hours annually for the organization, or pro bono referral Immigration Court (EOIR–28 Notice of
succeeding years. service with which he or she is Entry of Appearance). When an attorney
List of Subjects associated. or representative of the organization
(3) Organization. A non-profit represents the individual pro bono
8 CFR Part 1003 religious, charitable, social service, or before the immigration court location,
Administrative practice and similar group established in the United the organization may count, toward the
procedure, Aliens, Immigration, Legal States. 50-hour requirement, the attorney’s or
services, Organizations and functions (4) Pro bono referral service. A referral representative’s out-of-court preparation
(Government agencies). service, offered by a non-profit group, time and in-court time. When the
8 CFR Part 1240 association, or similar organization organization refers the case for pro bono
established in the United States that legal services outside the organization,
Administrative practice and assists persons in locating pro bono the organization may count, toward the
procedure, Aliens. representation by making case referrals 50-hour requirement, time the
8 CFR Part 1241 to attorneys or organizations that are organization’s attorneys and
available to provide pro bono representatives spent providing pro
Administrative practice and representation.
procedure, Aliens, Immigration. bono legal services, for example
(5) Provider. Any organization, pro conducting an intake interview or
Accordingly, for the reasons stated in bono referral service, or attorney whose mentoring the attorney or representative
the preamble, parts 1003, 1240, and name is included on the List of Pro to whom the case is referred. However,
1241 of chapter V of title 8 of the Code Bono Legal Service Providers. the organization is not permitted to
of Federal Regulations are amended as (b) Authority. The Director shall count the time of the attorney or
follows: maintain a list, known as the List of Pro representative to whom the case was
PART 1003—EXECUTIVE OFFICE FOR Bono Legal Service Providers (List), of referred.
IMMIGRATION REVIEW organizations, pro bono referral services, (2) The organization has on its staff at
and attorneys qualified under this least one attorney, as defined in
subpart to provide pro bono legal § 1292.1(a)(1) of this chapter, or at least
tkelley on DSK3SPTVN1PROD with RULES5
■ 1. The authority citation for part 1003
continues to read as follows: services in immigration proceedings. one representative accredited under part
Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8
The List, which shall be updated not 1292 of this chapter, to practice before
U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, less than quarterly, shall be provided to the immigration courts and the Board of
1226, 1229, 1229a, 1229b, 1229c, 1231, individuals in removal and other Immigration Appeals.
1254a, 1255, 1324d, 1330, 1361, 1362; 28 proceedings before an immigration (3) No attorney or representative who
U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. court. will provide pro bono legal services on
VerDate Sep<11>2014 21:33 Sep 30, 2015 Jkt 238001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\01OCR5.SGM 01OCR5](https://thefederalregister.org/doc/80_FR_59693/page/8.svg)
![Federal Register / Vol. 80, No. 190 / Thursday, October 1, 2015 / Rules and Regulations 59513
(ii) Has filed a false declaration in authority to discipline a practitioner located in the district where his or her
connection with an application filed under EOIR’s rules and procedures for exclusion hearing is to be held; and
pursuant to § 1003.63; professional conduct for practitioners shall ascertain that the applicant has
(iii) Improperly uses the List listed in 8 CFR part 1003, subpart G. received a list of such programs’’ and
primarily to advertise or solicit clients ■ 9. Add § 1003.66 to read as follows: adding, in their place, the words
for compensated legal services; or ‘‘Government; advise him or her of the
(iv) Fails to comply with any and all § 1003.66 Changes in information or availability of pro bono legal services for
other requirements of this subpart. status. the immigration court location at which
(2) Notice. If the Director determines All providers with a pending the hearing will take place, and
that a provider falls within one or more application or currently on the List must ascertain that he or she has received a
of the enumerated grounds under notify the Director in writing within ten list of such pro bono legal service
paragraph (d)(1) of this section, the business days if: providers’’.
Director shall promptly notify the (a) The provider’s contact information
provider in writing, at the address last has changed; § 1240.48 [Amended]
provided to the Director by the provider (b) Any specific limitations in ■ 13. In § 1240.48, amend paragraph (a)
or electronically, of the Director’s providing pro bono legal services under by removing the words ‘‘free legal
intention to remove the name of the § 1003.63(b)(4), (c)(2), or (d)(2) have services programs qualified under 8 CFR
provider from the List. changed; or part 1003 and organizations recognized
(3) Response. The provider may (c) The provider is no longer eligible pursuant to § 1292.2 of this chapter,
submit a written answer within 30 days under § 1003.62. located in the district where the
from the date the notice is served, as deportation hearing is being held;
described in § 1003.13, or is sent to the PART 1240—PROCEEDINGS TO ascertain that the respondent has
provider electronically. The provider DETERMINE REMOVABILITY OF received a list of such programs’’ and
must establish by clear and convincing ALIENS IN THE UNITED STATES adding, in their place, the words ‘‘pro
evidence that the provider continues to bono legal services for the immigration
meet the qualifications for inclusion on ■ 10. The authority citation for part
court location at which the hearing will
the List, by declaration under penalty of 1240 continues to read as follows:
take place; ascertain that the respondent
perjury as to the provider’s continued Authority: 8 U.S.C. 1103, 1182, 1186a, has received a list of such pro bono legal
compliance with eligibility 1224, 1225, 1226, 1227, 1251, 1252 note, service providers’’.
requirements under this subchapter, 1252a, 1252b, 1362; secs. 202 and 203, Pub.
which must include alien registration L. 105–100 (111 Stat. 2160, 2193); sec. 902, PART 1241—APPREHENSION AND
Pub. L. 105–277, (112 Stat. 2681).
numbers of clients in whose cases the DETENTION OF ALIENS ORDERED
provider rendered pro bono legal ■ 11. In § 1240.10, revise paragraphs REMOVED
services under § 1003.62(a)(1), (b)(2), or (a)(2) and (3) to read as follows:
(d)(2), representing at least 50 hours of ■ 14. The authority citation for part
§ 1240.10 Hearing. 1241 continues to read as follows:
pro bono legal services each year since
the provider’s most recent declaration (a) * * *
Authority: 5 U.S.C. 301, 552, 552a; 8
under § 1003.64(b)(2), or since the (2) Advise the respondent of the U.S.C. 1103, 1182, 1223, 1224, 1225, 1226,
provider was included on the List, availability of pro bono legal services for 1227, 1231, 1251, 1253, 1255, 1330, 1362; 18
whichever was more recent. the immigration court location at which U.S.C. 4002, 4013(c)(4).
(4) Decision. If, after consideration of the hearing will take place, and
ascertain that the respondent has § 1241.14 [Amended]
any response submitted by the provider,
the Director determines that the received a list of such pro bono legal ■ 15. In§ 1241.14, amend paragraph
provider is no longer qualified to remain service providers. (g)(3)(i) by removing the words ‘‘a list of
on the List, the Director shall: (3) Ascertain that the respondent has free legal service providers,’’ and
(i) Remove the name of the provider received a copy of appeal rights. adding, in their place, the words ‘‘the
from the List no later than in the next * * * * * List of Pro Bono Legal Service Providers
quarterly update; and for the immigration court at which the
(ii) Notify the provider of such § 1240.32 [Amended]
hearing is being held’’.
removal in writing, at the address last ■ 12. In § 1240.32, amend paragraph (a)
by removing the words ‘‘Government, Dated: September 15, 2015.
provided to the Director by the provider
or electronically. and of the availability of free legal Sally Quillian Yates,
(5) Disciplinary Action. Removal from services programs qualified under 8 CFR Deputy Attorney General.
the List pursuant to § 1003.65(a), (b), (c), part 1003 and organizations recognized [FR Doc. 2015–24017 Filed 9–29–15; 11:15 am]
or (d) shall be without prejudice to the pursuant to § 1292.2 of this chapter BILLING CODE 4410–30–P
tkelley on DSK3SPTVN1PROD with RULES5
VerDate Sep<11>2014 21:33 Sep 30, 2015 Jkt 238001 PO 00000 Frm 00011 Fmt 4701 Sfmt 9990 E:\FR\FM\01OCR5.SGM 01OCR5](https://thefederalregister.org/doc/80_FR_59693/page/11.svg)
Document Created: 2015-12-15 08:41:15
Document Modified: 2015-12-15 08:41:15
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective November 30, 2015. | |
| 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). | |
| FR Citation | 80 FR 59503 | |
| RIN Number | 1125-AA62 | |
| CFR Citation | 8
CFR
1003 8 CFR 1240 8 CFR 1241 | |
| CFR Associated | Administrative Practice and Procedure; Aliens; Immigration; Legal Services and Organizations and Functions (government Agencies) |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR