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EOIR
Final Rule Regarding Practice of Attorneys
Before the BIA and the Immigration Courts
The
Executive Office for Immigration Review has published a final rule, which
addresses practice before the INS, provides for investigation of complaints and
sanctions against attorneys, and makes the BIA the reviewing body for decisions
relating to infractions before the EOIR. The
rule does not extend to government attorneys. (65 FR 39513, 6/27/00).
The complete rule follows:
**********************************************************
[Federal Register: June 27, 2000 (Volume 65, Number 124)]
[Rules and Regulations]
[Page 39513-39534]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jn00-2]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 3 and 292
[EOIR No. 112F; A.G. Order No. 2309-2000]
RIN 1125-AA13
Professional Conduct for Practitioners--Rules and Procedures
AGENCY: Executive Office for Immigration Review and Immigration and
Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This final rule amends the rules and procedures concerning
professional conduct for attorneys and
[[Page 39514]]
representatives (practitioners) who appear before the Executive Office
for Immigration Review (EOIR) and/or the Immigration and Naturalization
Service (the Service). This final rule also includes a provision that
was promulgated as an interim rule on April 6, 1992, pursuant to
section 545 of the Immigration Act of 1990, concerning sanctions
against attorneys or representatives who engage in frivolous behavior
in immigration proceedings. This final rule outlines the authority EOIR
has to investigate complaints and impose disciplinary sanctions against
practitioners who appear before its tribunals, and clarifies the
authority of the Service to investigate complaints regarding
practitioners who conduct business with the Service. This final rule
permits EOIR and the Service to investigate allegations of ethical
misconduct and initiate disciplinary proceedings more effectively and
efficiently while ensuring the due process rights of the practitioner.
The final rule also reinstates the Board of Immigration Appeals as the
reviewing body for disciplinary decisions, instead of the Disciplinary
Committee, as was set forth in the proposed rule. Both the public
comments and the Department of Justice's (Department) reassessment of
the appellate review process resolved that, as is presently
established, Board review of disciplinary decisions is more efficient
and practical and should therefore remain unchanged. Additionally, this
final rule enables efficient resolution of frivolous complaints and
meritorious cases, a consideration critical to, and in the best
interests of, all parties involved.
EFFECTIVE DATE: July 27, 2000.
FOR FURTHER INFORMATION CONTACT: Charles Adkins-Blanch, Acting General
Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike,
Suite 2400, Falls Church, Virginia, 22041, telephone (703) 305-0470, or
Julia A. Doig, Chief Appellate Counsel, Immigration and Naturalization
Service, 5113 Leesburg Pike, Suite 200, Falls Church, Virginia 22041,
telephone (703) 756-6257.
SUPPLEMENTARY INFORMATION: Currently, the regulations at 8 CFR 292.3
require the Service to investigate complaints filed regarding the
conduct of attorneys and representatives (referred to in the final rule
as practitioners) practicing before both the Service and EOIR. If the
investigation establishes, to the satisfaction of the Service, that
disciplinary proceedings should be instituted, the General Counsel of
the Service serves a copy of the written charges upon the attorney or
representative and upon the Office of the Chief Immigration Judge. The
present procedure provides for the government to be represented by a
Service attorney in disciplinary proceedings before an Immigration
Judge. The decision of the Immigration Judge may be appealed to the
Board of Immigration Appeals (Board) by either party.
On January 20, 1998, the Service and EOIR published a proposed rule
in the Federal Register (63 FR 2901) amending parts 3 and 292 of the
rules and procedures governing professional conduct for practitioners
who appear before EOIR, which includes the Board and the Immigration
Courts, as well as the rules and procedures governing professional
conduct for practitioners who conduct business before the Service. The
proposed rule included various grounds of discipline and procedures for
hearings and appeals, which, although somewhat more sophisticated, were
in many ways similar to the approach of the current regulations. The
proposed rule was neither written on a clean slate nor did it propose
to institute a new form of professional discipline; in fact, it was
merely intended to clarify and improve the existing procedures and, in
particular, to remove the Service from the enforcement role with
respect to professional misconduct occurring before the Board and the
Immigration Courts. The proposed rule did contain a new procedure for
adjudicating disciplinary complaints. The proposed process included a
hearing by an adjudicating official appointed by the Director of EOIR
and a report by that adjudicating official to a three-member
Disciplinary Committee appointed by the Deputy Attorney General.
This final rule retains the Service's investigative and
prosecutorial responsibilities only in disciplinary proceedings for
those practitioners who conduct business before the Service as an
adjudicative body, e.g., in asylum proceedings, adjustment interviews,
and visa petition cases, but transfers these same investigative and
prosecutorial responsibilities to EOIR for practitioners appearing
before the Board and the Immigration Courts. This change allows each
agency to maintain separate jurisdictions over practitioners based upon
which agency they appear before, while permitting both agencies to
utilize the same hearing and appeal process. This change will result in
a fair and consistent application of the rules.
In response to the proposed rulemaking, EOIR and the Service
received 491 comments. Identical form letters from South Florida
practitioners totaled 130, with 17 additional individual letters from
the same region. These letters account for approximately 30% of the
total comments received. Another 277 names were signed to one petition-
style letter prepared by the national office of the American
Immigration Lawyers Association (AILA), accounting for approximately
57% of the total comments received. Some of the public comments were
supportive; one in particular recounted the detrimental effect that one
practitioner's negligence had on two unsuspecting immigrants. Many
others, however, were opposed to any rule that would regulate
practitioners' professional conduct. EOIR and the Service gave full
consideration to each and every public comment submitted during the
comment period. We first submit some general authorities and then
address the concerns expressed in the comments in the following
passages.
In exercising its plenary powers over immigration, Congress has
granted express authority to the Attorney General to ``establish such
regulations * * * as (s)he deems necessary for carrying out (her)
authority'' under the laws relating to the immigration and
naturalization of aliens. 8 U.S.C. 1103(a)(3). Congress also provided
that aliens in immigration proceedings ``shall have the privilege of
being represented (at no expense to the government) by such counsel,
authorized to practice in such proceedings, as he shall choose.'' 8
U.S.C. 1362 (emphasis added). In so doing, Congress vested implied
authority with the Attorney General to prescribe standards of conduct
and rules of procedure that are applicable to practitioners who appear
before the Board, the Immigration Courts, and the Service.
In the proposed rule, EOIR and the Service noted that the primary
purpose of prescribing rules and setting standards for determining who
may practice before the Board, the Immigration Courts, and the Service,
and for adopting procedures for disciplining those practitioners who
fail to conform to such standards, includes the protection of the
public, the preservation of the integrity of the Immigration Courts,
and the maintenance of high professional standards. EOIR and the
Service are committed to these important public interest objectives
through the fair and efficient administration of this final rule.
While most practitioners adequately represent their clients in
immigration matters, a small minority of practitioners do not meet the
minimum
[[Page 39515]]
standards set forth in this rule and an even smaller minority may take
unfair advantage of the very clients they have promised to help. Others
have engaged in conduct that has rendered them unfit to practice law,
as determined by the state courts which originally licensed them to
practice. The practitioners who should not, and in fact cannot, be
permitted to continue to practice before EOIR and the Service are the
practitioners who will primarily be affected by this rule.
General Comments
A chief concern of many commenters was that this rule would have a
chilling effect on an immigration practitioner's ability to advocate
zealously for his or her client, suggesting that both the First
Amendment right to freedom of speech and the Sixth Amendment right to
counsel were implicated by such a rule. A similar majority argued that
it is not the function of EOIR or the Service to control the conduct of
attorneys who have been admitted to the practice of law by state
courts. Many commenters expressed concern that sanctions imposed
pursuant to this rule could cut off a practitioner's livelihood or
jeopardize his or her professional reputation, although some
acknowledged a need to protect clients from unscrupulous immigration
practitioners, citing incompetent and/or unethical conduct by
practitioners. One commenter was particularly concerned with protecting
non-profit agencies from the burdens of potentially higher professional
liability policies, more staff training, and better case-screening
procedures.
Several commenters suggested that EOIR and the Service pattern the
proposed disciplinary rule after the disciplinary process applicable to
representatives who appear before Administrative Law Judges in the
Social Security Administration (SSA) and the Internal Revenue Service
(IRS). Under such advisement, EOIR and the Service consulted SSA and
IRS regulations in drafting this disciplinary rule and adopted many of
the provisions promulgated by those agencies.
The following paragraphs provide a section-by-section summary of
the comments received, followed by the Department's response. Many of
the comments were lengthy and we have attempted to summarize the
commenters' views as accurately as possible. We have responded to all
of the relevant issues raised in the comments and have highlighted
where revisions have been made to the proposed rule. Please note that
section numbering in the final rule has been revised.
Sections 3.101(a) and 3.106(a)--Adjudicating Officials and Composition
of the Disciplinary Committee
Comments. Some commenters suggested that an inherent conflict
exists given that adjudicating officials and the Disciplinary Committee
have a connection to EOIR that taints the entire disciplinary process.
Comments regarding the composition of the Disciplinary Committee
included the following: The composition of the Committee is vague; the
pool of possible members should be specified with term limits; no
qualifications for the Committee have been specified; the Committee
should be independent of the Department; the Committee should include a
non-lawyer; the Committee should include a member of the private bar;
and the EOIR representative should not serve on the Committee if he or
she is also the complainant in a particular case. Several commenters
also suggested that an Immigration Judge should not serve as the
adjudicating official in a case where he or she is also the
complainant, an Immigration Judge should not serve as the adjudicating
official in any case involving a practitioner who regularly appears
before him or her, and the disciplinary hearing should be conducted by
an Administrative Law Judge (ALJ) pursuant to the Administrative
Procedure Act (APA).
Other commenters assumed that Immigration Judges would be
prejudiced against aliens while favoring the government and, therefore,
would not be fair adjudicating officials. Some commenters noted that
the rule provides no guidelines for appointing adjudicating officials
and no opportunity to submit briefs or arguments to the Disciplinary
Committee.
Response. Although some commenters concluded that the connection
between adjudicating officials and EOIR taints the disciplinary
process, there was no specific suggestion of how such a connection
causes conflict or unfairness. Moreover, there is little merit to the
argument of inherent conflict, since the Board and Immigration Judges
are all part of the Department and yet act independently in fairly
adjudicating the nation's immigration laws. A connection between EOIR
and the proposed disciplinary process is not inherently unfair nor does
it create an inherent conflict. Precedent for such a process exists
within the disciplinary system used by the Social Security
Administration, which uses its own ALJs as hearing officers and its own
Appeals Council as a reviewing panel.
However, EOIR and the Service have revised several of the
provisions in this section in response to the comments that we
received. The rule has been revised to provide that an Immigration
Judge shall not serve as the adjudicating official in cases where he or
she is also the complainant in a case (Sec. 3.106(a)(1)(i)). Also, an
Immigration Judge shall not serve as the adjudicating official in any
case involving a practitioner who regularly appears before him or her
(Sec. 3.106(a)(1)(i)). In the final rule, the Chief Immigration Judge
will appoint the adjudicating official in most cases
(Sec. 3.106(a)(1)(i)).
More significantly, in light of the comments received, EOIR and the
Service have, in the final rule, replaced the proposed Disciplinary
Committee with the Board in all respects. Since the Board already has
the authority to implement the existing disciplinary system under
Sec. 3.1(d)(3), and to hear appeals of disciplinary sanctions under
Sec. 292.3(b)(1)(vi), revising the final rule to have appeals go to the
Board results in no change in the Board's current (and long-standing)
role.
We have identified a number of reasons for retaining the Board as
the appellate body for disciplinary decisions made by adjudicating
officials. First, the Board provides practitioners subject to these
proceedings with an established appeal process. All of the procedural
practices concerning briefing schedules, transcripts, motions, and oral
arguments will be consistent for both immigration proceedings and
disciplinary proceedings. Most practitioners know the Board's appeal
procedures and will be familiar with them when appealing any
disciplinary decision. Second, the Board has the immigration expertise
which may prove critical where a practitioner's conduct is intricately
intertwined with the legal issues in an underlying immigration case.
Third, the Board, unlike the Disciplinary Committee, has the ability to
publish precedent decisions, thereby providing practitioners and the
public with authoritative interpretations of the regulations. Fourth,
it is logical for the Board to exercise ultimate control over
practitioners who appear before EOIR, and also consistent with state
court practice of having the highest appellate level oversee the
ultimate discipline of practitioners. Finally, the Board is structured
to hear cases on a regular, consistent basis and has the support
resources (attorney staff, paralegals,
[[Page 39516]]
clerks) to fully staff a disciplinary system.
By retaining the Board's review authority, we anticipate the
issuance of timely decisions by members possessing the requisite legal
and procedural expertise, as well as adjudicatory experience. This
assumption is based on the fact that the Board has reviewed
disciplinary cases on appeal throughout the existence of the current
disciplinary program. Some of the comments to the proposed rule raised
opposition to the ``in-house'' nature of the Disciplinary Committee.
However, given that the Board is an established independent adjudicator
within the Department, the revised appeal structure should dispel any
concerns about an ``in-house'' review.
One commenter suggested disciplinary hearings should be conducted
pursuant to the Administrative Procedure Act (APA) (codified at 5
U.S.C. 551 et seq.), which primarily regulates the processes of
rulemaking and adjudication by agencies with substantial independent
authority in the exercise of specific functions. Determining whether
the APA applies to disciplinary proceedings conducted under this rule
requires careful consideration of several factors.
As stated above, Congress has granted authority to the Attorney
General to set standards for determining who may practice before the
Board, the Immigration Courts, and the Service, and to prescribe rules
of procedure for disciplining those who fail to conform to such
standards. An agency with the power to admit practitioners has the
authority to disbar or discipline them for professional misconduct.
Also, since deportation proceedings are not subject to the APA, see
Marcello v. Bonds, 349 U.S. 302, 309 (1955) (Administrative Procedure
Act is not applicable to deportation proceedings under the Immigration
and Nationality Act); Castillo-Villagra v. INS, 972 F.2d 1017, 1025
(9th Cir. 1992) (Immigration and Nationality Act, rather than
Administrative Procedure Act, controls exclusively in deportation
proceeding), disciplinary proceedings pursuant to 8 U.S.C. 1362
historically have not been conducted under the APA, see Herman v.
Dulles, 205 F.2d 715, 717 (D.C. Cir. 1953) (existing powers of
administrative agencies to control practice by counsel who appear
before them are not changed by the Administrative Procedure Act, citing
Attorney General's Manual on the Administrative Procedure Act, 1947,
p.66). Furthermore, no statutory provision exists which requires the
adjudication of such disciplinary proceedings under the APA. See United
States v. Independent Bulk Transport, Inc., 480 F. Supp. 474, 477
(S.D.N.Y. 1979) (provisions of APA apply only if another statute
requires that they be utilized); see also Amalgamated Meat Cutters and
Butcher Workmen v. Connally, 337 F. Supp. 737, 761-62 (D. D.C.1971).
Moreover, this rule provides ample protections for practitioners
subject to discipline, analogous to procedures provided in the APA and
consistent with the delineated public interest objectives of the
Department. Such protections include timely notice of hearings and the
opportunity to be heard with respect to the charges lodged.
In addition, subjecting disciplinary proceedings to the strictures
of the APA is unnecessary, and it would also be impractical and
burdensome given that Immigration Judges (who comprise the largest pool
of potential adjudicating officials) do not adjudicate cases pursuant
to the APA. Finally, as stated in the supplementary information to the
proposed rule, practitioners subject to discipline may avail themselves
of judicial review pursuant to 28 U.S.C. 1331 upon issuance of a final
administrative order.
Therefore, in light of the above considerations and in order to
maintain consistency with, among other things, the current disciplinary
rule, Board disciplinary decisions that have been upheld by the Federal
courts, and established Immigration Court practices, the Department has
determined that disciplinary hearings will be conducted in the same
manner as immigration proceedings.
The proposed rule contained no provision for briefs to be submitted
or oral arguments to be heard before the Disciplinary Committee.
However, now that the rule retains the Board as the appellate body in
disciplinary proceedings, the regulations that govern oral argument
(see 8 CFR 3.1(e)) and the submission of briefs on appeal (see 8 CFR
3.3(c)) are incorporated by reference in the final rule.
Sections 3.103 and 292.3(c)--Immediate Suspension and Summary
Proceeding
Comments. Several commenters suggested that an immediate suspension
provision could create an unfair and prejudicial result based on ``a
skeletal complaint filed by a disgruntled client.'' The commenters
expressed concern that a practitioner could be suspended based on mere
allegations of misconduct. This presumption is incorrect, as explained
below. Others felt that a criminal conviction or state bar disciplinary
action should be ``final'' before an administrative decision is
rendered; otherwise ``a practitioner will have been deprived of his or
her livelihood during that period'' should the conviction or
disciplinary action be overturned or vacated.
Response: The disciplinary rule provides that a practitioner may be
subject to immediate suspension and a summary proceeding based only
upon either (i) disbarment, suspension, or resignation with an
admission of misconduct as found by a state or Federal court or (ii) a
conviction for a serious crime. The language in this provision is
similar to that found in the Rules for Disciplinary Enforcement for the
United States Court of Appeals for the District of Columbia Circuit,
the District of Columbia Court of Appeals' Rules Governing the Bar, and
the California Rules of Professional Conduct.
The immediate suspension provision, therefore, is designed to
protect the public from practitioners who have a criminal conviction,
are no longer in ``good standing'' as set forth in 8 CFR 1.1(f), or who
have otherwise forfeited or encumbered their law license. Such
misconduct does not arise from ``a skeletal complaint filed by a
disgruntled client.'' Rather, based upon facts proven by the requisite
high standard of proof (``clear and convincing evidence'' in most
disciplinary matters and ``beyond a reasonable doubt'' in criminal
matters) and applicable law, a state or Federal court has already made
a determination that the practitioner has engaged in serious
misconduct. As amplified in the final rule, such a determination, as
evidenced by a certified copy of a court record or order, brings
``title deeds of high respect'' and must be accorded great deference.
Furthermore, a rule that would permit a practitioner who has been
criminally convicted of a serious crime to continue to practice before
the Board, the Immigration Courts, or the Service pending all appeals
of the underlying matter would expose the court's proceedings to the
intervention of disqualified, unfit practitioners and subject clients
to unnecessary risk. However, recognizing that a practitioner may seek
to appeal such a conviction during the period of his immediate
suspension, the rule has been amended so that no final administrative
disciplinary order may be entered until all direct appeals of the
underlying conviction have been exhausted. Additionally, the final rule
provides that the Board may set aside an immediate suspension order
``when it appears in the interest of justice to do so.''
[[Page 39517]]
The final rule provides an attorney with an opportunity to rebut
the presumed validity of the underlying disciplinary order in a summary
proceeding by demonstrating that: (1) The underlying disciplinary
proceeding was so lacking in notice or opportunity to be heard as to
constitute a deprivation of due process; (2) there was such an
infirmity of proof establishing the attorney's professional misconduct
as to give rise to the clear conviction that the adjudicating official
could not, consistent with his or her duty, accept as final the
conclusion on that subject; or (3) the imposition of discipline by the
adjudicating official would result in grave injustice. The proposed
rule denied an attorney admitted in only one jurisdiction the
opportunity to rebut the presumption of professional misconduct. This
provision has been eliminated in the final rule. This procedure
comports in part with, among other jurisdictions, the United States
Supreme Court's practice in imposing reciprocal discipline.
Additionally, the proposed rule made the rebuttable presumption
safeguards available to practitioners in summary proceedings premised
on either reciprocal discipline for professional misconduct or
conviction of a serious crime. However, consistent with the practice of
state bars, we have limited the rebuttable presumption safeguards so
that they apply in reciprocal discipline matters only, rather than
extend them to criminal conviction matters, and amended the rule
accordingly. Thus, upon filing a certified copy of a court record
evidencing a criminal conviction in a summary proceeding based thereon,
the only issue to be determined shall be the nature of the discipline
to be imposed. Under the final rule, absent extraordinary
circumstances, practitioners will be prevented from launching
collateral attacks on criminal convictions in a summary proceeding.
Section 3.102--Grounds
General Comments. Several commenters suggested that the rules for
sanctions are too vague and do not contain the level of detail,
specificity, and explanation provided by the American Bar Association
Model Rules of Professional Conduct (ABA Model Rules). However, others
agreed that since the rule closely tracks the ABA Model Rules and that
those rules are undergoing revision, this Federal rule should undergo
the same revision. Still other commenters suggested that EOIR and the
Service use the IRS disciplinary rules as a guide.
Commenters suggested that the rule be expanded to allow for
disciplining lawyers who assist in the unauthorized practice of law,
e.g., attorneys who sign their names to forms prepared by non-lawyers
without any attorney input or oversight. Some commenters went on to
suggest that the rule should reach beyond disciplining lawyers only and
expand to discipline visa consultants and notarios who engage in the
unauthorized practice of immigration law, such that any fee collected
by a notario would be considered ``excessively gross'' and any
application, petition, or brief prepared by a notario would be
considered negligence per se.
Response. As stated in the supplementary information to the
proposed rule, the revised grounds for disciplinary sanctions include
language, wherever possible, that is similar, if not identical to, the
ABA Model Rules. EOIR and the Service gave serious consideration to the
suggestion that a ground for disciplinary sanctions that addresses the
problem of the unauthorized practice of law be included in the final
rule. The difficulty in addressing this problem involves a
jurisdictional issue. The jurisdiction of this rule is limited to
practitioners, i.e., attorneys, accredited representatives, and other
persons described in 8 CFR 292.1(a). It cannot reach to persons who are
not within one of these categories, such as visa consultants or
notarios, because the statutory language at 8 U.S.C. 1362, which
establishes the framework for the attorney discipline process, refers
only to counsel ``authorized to practice in (removal and appeal)
proceedings.'' However, in response to the comments, EOIR and the
Service have added an additional ground for discipline in the final
rule which renders a practitioner subject to discipline if he or she
assists a non-practitioner in the performance of any activity that
constitutes the unauthorized practice of law.
Section 3.102(a)--Grossly Excessive Fees
Comments. Many commenters expressed concerns that EOIR and the
Service would be ``second-guessing the amount of work attorneys
dedicate to their cases or the fees they charge.'' They stated that
fees depend on many subjective factors and further concluded that only
private practitioners have the experience to know how to appropriately
set fees. Other commenters pointed out that since fees are negotiated
with a client up front, the client has the option to go to a different
attorney if he or she finds that the fees are too high. Some commenters
noted that making a determination of what is ``grossly excessive'' will
require probing into confidential client information, while others
inquired as to how much weight will be given to the different factors
used in determining what is ``grossly excessive.'' While some
commenters concluded that state bar associations generally do not
involve themselves in financial arrangements between lawyers and
clients, others suggested that federal regulation is unnecessary
because state bar associations can review fee disputes. Still others
suggested this was a means by which EOIR and the Service would punish a
practitioner who has been successful in defending an immigration
client.
Response. It is important to note that the primary purpose of this
provision is to protect clients, not to interfere with attorney-client
fee arrangements. The ``grossly excessive fees'' standard, which exists
in the current rule and was retained in the proposed rule, is higher
than the ``reasonable fees'' measure set out under the ABA Model Rules.
The ``grossly excessive'' standard is similar to the ``unconscionable''
standard used by the IRS in its regulations. See 31 CFR 10.28.
Unlike the general provision in the existing regulation, the
provision in the final rule enumerates factors to be considered in
determining if a fee is grossly excessive that are virtually identical
to those found in the ABA Model Rules. These factors include: The time
and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service
properly; the likelihood, if apparent to the client, that the
acceptance of the particular employment will preclude other employment
by the practitioner; the fee customarily charged in the locality for
similar legal services; the amount involved and the results obtained;
the time limitations imposed by the client or by the circumstances; the
nature and length of the professional relationship with the client; and
the experience, reputation, and ability of the practitioner or
practitioners performing the services. As other jurisdictions have
done, a balancing test may be crafted based upon the various factors in
deciding whether a practitioner has violated the rule. These factors
will improve the fair assessment of fees by providing practitioners
with notice of the variables to be used in determining if a fee is
grossly excessive. Investigating allegations of grossly excessive fees
may require probing into confidential client information where
absolutely necessary,
[[Page 39518]]
and then only with the client's permission.
It is important to note that this rule is not designed to set fee
schedules or arbitrate fee disputes between practitioners and their
clients. Neither EOIR nor the Service intends to engage in ``second-
guessing'' negotiated fee arrangements. Expert jurists in immigration
law who command higher fees for their services than other immigration
practitioners would not be in violation of the regulations based solely
on their fee. However, we are aware of instances in which practitioners
have preyed on unsuspecting clients by charging them exorbitant fees
for handling relatively routine immigration matters, or worse yet, have
charged clients for services that were never rendered at all.
Protecting clients from practitioners who charge such grossly excessive
fees is the purpose of this provision.
Section 3.102(b)--Bribes
Comment. One commenter suggested that expanding the rule to include
``attempt to bribe'' as well as bribery was unnecessary and that
proving ``attempt to bribe'' would be difficult and should not be
included in the rule.
Response. This basic language is in the current rule. Moreover, it
would be inadvisable to limit this rule to only those persons who
successfully bribe an individual, but not include those who engage in
conduct that constitutes an attempt to bribe. The act of attempted
bribery is as serious as the act of bribery itself and certainly
compromises the integrity of the practitioner who engages in such
behavior. Therefore, we did not adopt this suggestion. It should be
noted that the SSA regulations also have a similar provision which
prohibits any ``attempt to influence, directly or indirectly, the
outcome of a decision, determination or other administrative action by
offering or granting a loan, gift, entertainment or anything of value
to a presiding official, Agency employee or witness who is or may
reasonably be expected to be involved in the administrative
decisionmaking process.'' 20 CFR 404.1740(c)(6).
Section 3.102(c)--False Statements and Willful Misrepresentation
Comments. Several commenters stated that this provision is too
vague and that the Department should provide more guidance. Another
commenter suggested that a ground for discipline should be included to
deal with preparation of documents, pleadings, papers, etc., that are
false and misleading and are prepared by attorneys who fail to disclose
their names and addresses as preparers.
Response. The language in this provision closely resembles the
language in the current regulation, combined with language from ABA
Model Rule 3.3. The language in the rule would not preclude pursuing a
practitioner who prepares false or misleading unsigned documents,
although the ability to prove who prepared such documents might be
difficult. Immigration Judges across the country have indicated that
the filing of false or fraudulent documents is a growing problem. This
problem includes the submission of once valid documents that have been
altered (e.g., foreign birth certificates), falsely created documents
(e.g., visas or letters from religious or political groups), and valid
documents that contain false information (e.g., asylum applications).
This provision as written is broad enough to deal with these types of
fraud. It should be noted that the SSA regulations have a similar
provision which states that an individual may not ``(k)nowingly make or
present, or participate in the making or presentation of, false or
misleading oral or written statements, assertions, or representations
about a material fact or law.'' 20 CFR 404.1740(c)(3).
Section 3.102(d)--Soliciting Professional Employment
Comment. One commenter suggested that the language in the rule
concerning solicitation may conflict with state bar solicitation
regulations already in place, creating difficulties for practitioners
who may wish to advertise in more than one area.
Response. The language in this provision closely resembles the
language in ABA Model Rule 7.3 and in the IRS regulations at 31 CFR
10.30. This provision is designed to deal with a growing number of
instances that have been brought to our attention concerning the use of
``runners'' in and around the Immigration Courts. These persons are not
authorized to practice immigration law themselves but approach
potential clients on behalf of individuals who are licensed
professionals. As noted in the Comment to ABA Model Rule 7.3:
There is a potential for abuse inherent in direct in-person or
live telephone contact by a lawyer with a prospective client known
to need legal services. These forms of contact between lawyer and a
prospective client subject the layperson to the private importuning
of the trained advocate in a direct interpersonal encounter. The
prospective client, who may already be overwhelmed by the
circumstances giving rise to the need for legal services, may find
it difficult fully to evaluate all available alternatives with
reasoned judgment and appropriate self-interest in the face of the
lawyer's presence and insistence upon being retained immediately.
The situation is fraught with the possibility of undue influence,
intimidation, and over-reaching.
Model Rules of Professional Conduct Rule 7.3 cmt. (1993).
Section 3.102(g)--Contumelious or Obnoxious Conduct
Comments. Many commenters registered their objections to this
provision. They argued that subjecting practitioners to discipline
based upon the concept of ``obnoxious behavior'' would result in
practitioners being unable to represent or defend their clients
zealously and would require them to be subdued or ``nice'' in order not
to offend EOIR or the Service. As one commenter put it: ``(O)ne
person's obnoxious behavior is another person's zealous
representation.'' Another commenter feared that ``(a) practitioner
could be disciplined if, in the opinion of the Disciplinary Committee,
he talks too fast or too slow, uses his hands too much when speaking,
or has some nervous habit.''
Still another commenter concluded that the threat of discipline
based on this ground would impair the attorney/client relationship
because practitioners would be afraid to advocate zealously on behalf
of their clients for fear that such representation would be perceived
as obnoxious. Some commenters suggested that it would be impossible for
EOIR and the Service to apply this rule in a consistent and fair
manner, while others noted that state bars already deal with
``contumelious'' or ``obnoxious'' conduct of practitioners. Several
commenters concluded that such a disciplinary ground would lead to
frivolous complaints and unnecessary litigation.
Response: Nothing in this provision is intended to impinge upon a
practitioner's zealous representation of his or her client. However,
even zealous representation does not entitle a practitioner to engage
in contumelious or obnoxious conduct. Any suggestion that this
provision will be used, as one commenter suggests, if a practitioner
``talks too fast or too slow, uses his hands too much when speaking, or
has some nervous habit'' is without basis. Behavior disciplined under
this provision will be necessarily extreme and without any acceptable
premise.
This provision is in the current rule and is retained in the final
rule. This provision is included primarily to address the type of
conduct that would rise to the level of contempt in a court
[[Page 39519]]
of general jurisdiction. IRS regulations contain a similar provision
for contemptuous conduct. See 31 CFR 10.51(i). Until recently,
Immigration Judges have not had the authority to issue contempt
citations for the type of behavior described in this provision. The
only alternative for a judge was to file a disciplinary complaint with
the Service. Immigration Judges were recently given contempt authority
in section 304 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Pub. L. 104-208 (IIRIRA), 8 U.S.C.
1229a(b)(1); however, this authority will be exercised only after the
Department issues regulations. It is expected that the contempt
regulations, once published, will provide that a practitioner can be
disciplined under the Professional Conduct Rules when the practitioner
has been sanctioned for contemptuous conduct by an Immigration Judge
pursuant to 8 U.S.C. 1229a(b)(1). A finding of contempt will become a
prerequisite to the imposition of disciplinary action pursuant to this
subsection. Therefore, the current language will be retained in the
final rule, pending amendment by the contempt regulations, which will
be published in the near future.
Section 3.102(h)--Convictions/Crimes
Comments. Some commenters found the definition of ``serious crime''
to be overly broad. While some commenters argued that a practitioner
might lose his or her livelihood for committing a minor offense, others
concluded that the conviction that forms the basis for disciplinary
action might have no bearing on the practitioner's ability to practice
immigration law. Several commenters found the retroactivity aspect of
this provision to be unfair, as well as the notion that a practitioner
who has filed a timely appeal from a criminal conviction or state
disciplinary finding would still be subject to discipline under the
rule. Several commenters pointed out that practitioners in each state
will be held to different standards of conduct because the definitions
of crimes vary from state to state.
Response: The definition of ``serious crime'' is taken from the
Rules of Disciplinary Enforcement for the United States Court of
Appeals for the District of Columbia. A ``serious crime'' as defined in
the rule includes ``any felony.'' Any practitioner who has been
convicted of a felony has seriously undermined his professional
integrity and reputation and, as a result, has jeopardized his ability
to continue to represent aliens before the Board, the Immigration
Courts, and the Service. Lesser offenses included within the definition
of a ``serious crime'' are offenses that involve moral turpitude, such
as fraud, bribery, extortion, deceit, theft, misappropriation, and
false swearing. A conviction for any of these crimes calls into
question a practitioner's ability to perform his or her duties in a
manner which upholds the integrity of the profession.
Moreover, the magnitude of interests to be affected by the
decisions of EOIR and/or the Service requires that those who represent
individuals before either agency be persons whose qualities as
practitioners will secure proper service to their clients and assist in
the discharge of important agency duties. Additionally, there is no
requirement in the authorities or by practice that an incident for
which the disciplinary authority seeks to bring charges must relate to
a proceeding or pending proceedings.
One commenter noted that the regulation requiring a practitioner to
notify EOIR of any conviction for a serious crime is prospective while
the actual ground for disciplinary action based on a conviction for a
serious crime may be retroactive. Convictions for serious crimes--
whether they occur before or after the effective date of the final
rule--call into question a practitioner's fitness to represent aliens.
A rule that would limit the criminal conviction ground to only those
practitioners convicted after the effective date of the rule would
substantially hamper the Department's goals of protecting the public
and preserving the integrity of immigration proceedings. Therefore,
Sec. 3.102(h), which is consistent with the prior rule, has not been
amended because applying this section only to convictions that occur
after the effective date of the rule would undermine the Department's
goals.
Several commenters raised a question with regard to the
practitioner who has appealed his or her conviction, stating that such
a person should not be subject to discipline during pendency of an
appeal. We agree. Therefore, we have added language in Secs. 3.103(b)
and 292.3(c)(2) that prevents imposition of final discipline arising
out of a criminal conviction until direct appeals of the underlying
conviction have been exhausted. Notwithstanding, we note that given the
grave nature of criminal proceedings and any resulting conviction or
plea, a practitioner may be subject to an interim order of suspension
under the regulations pending the outcome of any such appeal.
Once again, the primary objective of this rule is to protect the
public and preserve the integrity of adjudicative immigration
processes. Any practitioner who has been convicted of a serious crime
should be held accountable for his or her actions, including loss of
the privilege to practice before the Board, the Immigration Courts, and
the Service.
Section 3.102(i)--False Certification of a Copy of a Document
Comment. One commenter suggested that the element of intent be
added to the rule.
Response: In response to this comment, we have revised this ground
by adding the element of intent.
Section 3.102(j)--Frivolous Behavior
Comments. Some commenters expressed concern that, under this
provision, practitioners might be inhibited from putting forth an
unpopular or unorthodox interpretation of the law; an attorney could
make a losing argument for ten years before the Board and then may
prevail in the eleventh year. It was suggested that an attorney's job
is to advocate the ``good points'' of the law as well as to challenge
the ``wrong'' side of rules and decisions. Others feared retribution
for taking actions disagreeable to EOIR or the Service. Several
commenters believed that the rule should include a requirement that a
practitioner zealously represent his or her client.
Response: Sanctions for frivolous behavior are required in section
545 of the Immigration Act of 1990 (8 U.S.C. 1230(b)(6)). This
provision implements the statutory language and has previously been
included at 8 CFR 292.3(a)(15). The language in this provision is
closely patterned after the language in Rule 11 of the Federal Rules of
Civil Procedure (FRCP). Precautions are provided to allow for both
advocacy grounded in fact or warranted by existing law or a good faith
argument for the extension, modification, or reversal of existing law
or the establishment of new law. Whereas the IRS regulations define
frivolous as ``patently improper,'' the language in the final rule
reflects a more specific set of standards and does not interfere with
the zealous advocacy of a practitioner.
Section 3.102(k)--Ineffective Assistance of Counsel.
Comments. One commenter suggested that ``[t]here should be a limit
of one year on the period of time following the alleged fact for a
complaint to be brought.'' One commenter concluded that this provision
would inhibit the zealous representation of immigrants;
[[Page 39520]]
another commenter went so far as to conclude that the fear of
disciplinary action ``will keep practitioners from telling their
clients of the mistakes they have made and instead of fixing the
mistakes, they would let them be.'' Another commenter suggested that
such a provision may prevent one practitioner from filing a motion to
reopen based on ineffective assistance of counsel because the other
practitioner could lose his or her livelihood. Others concluded that
since the ABA Model Rules do not make malpractice a disciplinary
offense, neither should the final rule, given that clients already have
the remedy of suing a practitioner for legal malpractice. Several
commenters believed that the final rule goes against the traditional
rules of professional conduct, while others felt that the state bar
disciplinary process is adequate.
Response: The comment concerning the time period within which a
complaint can be filed based on an ineffective assistance of counsel
claim suggests that the time period be limited to one year from the
alleged misconduct, rather than five years as provided in the rule.
However, because a finding of ineffective assistance of counsel must be
made by the Board or the Immigration Court before such a complaint
would be considered, and since many cases take longer than one year to
adjudicate fully, a longer period of time is required in order to
protect the complaining alien. Also, a shorter period of time might
unfairly discourage or prevent an alien from bringing a complaint
against his or her former attorney or accredited representative.
However, in order to strike a balance on this point, the Department has
amended the rule to require that a complaint based on this ground be
filed within one year of the finding of ineffective assistance of
counsel made by the Board or the Immigration Court.
It is worrisome to believe that a practitioner would risk a
client's case, and possibly his client's ability to remain in this
country, and not resolve a potential problem by choosing instead to
remain idle in order to protect himself from an ineffective assistance
of counsel claim that would survive only if due process had been denied
as a result of the practitioner's conduct, i.e., where the proceeding
was so fundamentally unfair that the alien was prevented from
reasonably presenting his case. See Matter of Lozada, 19 I&N Dec. 637,
638 (1988); see also Ramirez-Durazo v. INS, 794 F.2d 491, 499-500 (9th
Cir. 1986). Also, one must show that he was prejudiced by his
representative's performance. See Mohsseni Behbahani v. INS, 796 F.2d
249, 251 (9th Cir. 1986).
Therefore, it is unlikely that a practitioner who has ``made a
mistake'' in a client's case would allow such a mistake to languish
when he could still resolve the problem without prejudice to the client
and, in all probability, no longer be subject to an ineffective
assistance of counsel claim. As is mentioned throughout the
supplementary information in the proposed rule, these regulations are
intended to preserve the fairness and integrity of the adjudicative
process, secure proper service to aliens subject to proceedings before
the Immigration Courts and the Service, and ensure minimal
qualification standards for practitioners.
Regarding the commenter who suggested that malpractice claims
should suffice as a remedy, it is certainly true that a client may sue
a practitioner for malpractice in such instances. However, speculation
about the availability of such a legal remedy should not preclude EOIR
or the Service from pursuing disciplinary action. While malpractice
lawsuits may result in monetary compensation for a particular client,
they do little to protect other clients from the same fate.
Section 3.102(l)--Repeated Failure To Appear for Scheduled Hearings in
a Timely Manner
Comment. One commenter felt the phrase ``repeatedly fails to
appear'' was too vague.
Response: This provision does not define the number of occasions
that will amount to ``repeated'' failures to appear. Such a definition
is not included in the rule because choosing an arbitrary number would
hamper the ability to utilize prosecutorial discretion when considering
a practitioner's explanation for his or her absences. In 1998, the
Social Security Administration published a final rule entitled
``Standards of Conduct for Claimant Representatives,'' see 63 FR 41404
(1998), which includes a provision similar to the provision in the
proposed rule regarding repeated absences from scheduled hearings. It
notes that ``such conduct adversely affects claimants, diminishes the
ability of the Agency to operate efficiently and harms other applicants
by disrupting schedules and work flow.'' Id. at 41406. For the same
reasons, EOIR and the Service have added a similar provision in the
rule, with the addition of a ``good cause'' element.
Section 3.102(m)--Assisting in the Unauthorized Practice of Law
Comment. Several commenters suggested that this rule address the
unauthorized practice of law issue. See General Comments above.
Response. In response to the comments, EOIR and the Service have
added an additional ground for discipline in the final rule which
renders a practitioner subject to discipline if he or she assists a
non-practitioner in the performance of any activity that constitutes
the unauthorized practice of law. This ground is a necessary addition
to the rule in order to protect the public from the mistakes of
untrained and unqualified individuals, as well as the schemes of
unscrupulous immigration practitioners, and reflects the concerns of a
number of commenters.
Sections 3.104(b) and 292.3(d)(3)--Preliminary Inquiries
and
Sections 3.105(a) and 292.3(e)(1)--Notice of Intent To Discipline
Comments. A large number of commenters were concerned that the
disciplinary process may be used to intimidate, retaliate, or otherwise
harass practitioners who are successful in advocating against the
government in immigration proceedings. One commenter suggested that
this rule might be used to ``intimidate and control any lawyer who
might be so bold as to file a motion to recuse a judge (or) seek to
enter an objection upon the record.'' The fact that the Department
components (EOIR and the Service) investigate disciplinary cases and
issue Notices of Intent to Discipline prompted some commenters to raise
due process and conflict of interest issues. One commenter suggested
that in order to ``move cases along,'' Immigration Judges will resort
to the disciplinary process and effectively chill aggressive
representation. Another commenter concluded that this rule is a way for
EOIR to ensure that ``as many non-citizens as possible be deported by
taking the lawyers out of the equation.''
One commenter suggested that the Notice of Intent to Discipline be
served by personal service and that the practitioner should be notified
of any complaint and be given an opportunity to respond before any
charging document is issued. Several commenters wanted to see the
government hire an independent entity to investigate complaints lodged
against private practitioners by government employees; others felt that
the
[[Page 39521]]
government should hire separate counsel to conduct independent
investigations.
Response: Most, if not all, of the commenters failed to recognize
that the current disciplinary system is structured so that the Service
(the prosecuting party in an adversarial immigration proceeding) is the
party bringing the disciplinary action before EOIR (the adjudicating
body). This structure has led to revisions in this rule which, in many
cases, transfers responsibility for issuing charging documents from the
Service to EOIR. The only cases in which the Service still retains
responsibility for issuing charging documents concern situations where
the Service serves as the adjudicating body (i.e., adjustment of status
cases, asylum cases, and some visa petition cases, among others, but
not in matters before an Immigration Judge or the Board). This
transition of the disciplinary system from the Service to EOIR is being
made specifically to eliminate the appearance of any bias or conflict
of interest. The Office of the General Counsel of EOIR or the Office of
the General Counsel of the Service, not Immigration Judges or Service
trial attorneys, is responsible for conducting preliminary inquiries
and issuing charging documents. While the comments reflect some
practitioners' reluctance to be regulated, there is simply no basis for
the conclusion that this disciplinary process is biased against
practitioners.
The primary purpose of this rule is to protect vulnerable aliens
from unscrupulous immigration practitioners and from those who have
engaged in conduct that raises questions about their fitness to
practice law. Rather than demonstrating an overabundance of zeal, some
practitioners fail to represent their clients at all. Numerous
complaints have been reported about practitioners who fail to appear or
to file essential documents or evidence on behalf of their clients. The
Board adjudicates numerous motions to reopen filed before it based on
such claims of ineffective assistance of counsel. The rule will provide
an effective means to address the mounting instances of practitioners'
failure to represent their clients. Many immigration practitioners have
had the experience of trying to salvage the case of a client who was
harmed by a previous representative's inaction. Often a state bar does
not have the expertise to evaluate or prosecute such cases of
misconduct. The disciplinary rules will provide an effective means to
address such problems.
Concerning the request that the practitioner be notified of any
complaints lodged against him or her, the preliminary inquiry will, in
most cases, afford the practitioner an opportunity to discuss the
complaint with an investigator. However, if a complaint is clearly
frivolous or without merit, it is possible that the practitioner may
not be contacted if it is determined that no action will be taken
against him or her. Additionally, during the preliminary inquiry phase
of a disciplinary proceeding, EOIR and the practitioner may reach a
resolution or settlement prior to the issuance of a Notice of Intent to
Discipline. Once the preliminary inquiry is completed, and if no such
resolution has been reached, a Notice of Intent to Discipline will then
be issued. It should be noted that the Notice of Intent to Discipline
will be served by personal service, as defined in 8 CFR 103.5a.
Sections 3.105(d) and 3.106(a)(2)--Default Provisions
Comments. One commenter stated that 15 days is an insufficient time
period in which to file a motion to set aside an order of default for
failure to file an answer or for failure to appear at a disciplinary
hearing. Some commenters thought that a practitioner should be allowed
to file motions at any time after an order is issued, or at least
within 180 days of issuance. One commenter thought that the provision
that requires a practitioner to prove a negative (i.e., failure to
appear due to exceptional circumstances) is unfair when the burden of
proof is placed on the practitioner.
Response: It should be noted that section 6103 of the California
Rules of Professional Conduct provides that if the accused does not
appear at the time appointed to answer the accusation without
sufficient cause, ``the court may proceed and determine the accusation
in his absence.'' Moreover, IRS disciplinary regulations provide that
an attorney's ``(f)ailure to file an answer within the time prescribed.
* * * shall constitute an admission of the allegations of the complaint
and a waiver of hearing, and the Examiner may make his decision by
default without a hearing or further procedure.'' 31 CFR 10.58(c).
Furthermore, it is common practice in state bar disciplinary
proceedings to allow both for default and expedited time frames when an
attorney fails to file an answer or fails to appear before a
disciplinary hearing panel. In response to the suggestions that the
time period be expanded for the filing of motions to set aside, EOIR
and the Service balanced the practitioner's due process rights against
the primary goals of this regulation, including the protection of the
public, and concluded that the time period set forth in the final rule
is fair.
Section 3.106(c)--Review Process
Comments. Most commenters complained that the rule provides no
opportunity for the practitioner to present a written or oral argument
to the Disciplinary Committee. The remaining commenters complained that
there is no appeal from the decision of the Disciplinary Committee.
Response: As stated above, the proposed Disciplinary Committee has
been replaced by the Board in all respects regarding this rule. All of
the established appeal procedures in immigration cases, including the
submission of written briefs and requests for oral arguments, now apply
also to disciplinary cases on appeal to the Board. A practitioner who
wishes to obtain judicial review of the Board's decision can do so in
Federal district court pursuant to28 U.S.C.1331.
Sections 3.106(d) and 292.3(g)--Referral to State Bars
Comment. One commenter suggested that the rule be amended to
require all orders of public discipline to be reported to the ABA
National Lawyer Regulatory Data Bank and to all jurisdictions in which
the disciplined attorney is admitted.
Response: We have incorporated into the final rule a provision for
referrals of public discipline to the ABA National Lawyer Regulatory
Data Bank and to every jurisdiction in which the disciplined attorney
is admitted.
Section 3.107--Reinstatement
Comments. One commenter believed that the requirement that a
``practitioner has the burden of proving that he or she possesses the
moral and professional qualifications to be reinstated by clear,
convincing, and unequivocal evidence'' is too ambiguous and does not
protect the public. Another commenter concluded that it is too
difficult to quantify moral qualifications, while another suggested
that the rule should provide for a hearing during which the
practitioner must show that he or she is rehabilitated and no longer
poses a risk to the public, the Board, the Immigration Courts, and the
Service.
Response: The language in this provision is taken directly from the
Rules of Disciplinary Enforcement for the United States Court of
Appeals for the District of Columbia Circuit. However, we have adopted
the suggestion on providing a reinstatement
[[Page 39522]]
hearing by amending the rule to give the Board discretion to hold a
hearing if the practitioner meets all of the reinstatement
requirements.
Section 3.108--Confidentiality
Comments. There were some generalized concerns that these
provisions do not sufficiently protect a practitioner's privacy,
especially with regard to disclosures made to law enforcement
authorities, complainants, and witnesses.
Response: These provisions are patterned after the Rules of
Procedure of the State Bar of California. The presumption in the
provisions is one of confidentiality, not disclosure. Exceptions to
confidentiality are based on ``protection of the public when the
necessity for disclosing information outweighs the necessity for
preserving confidentiality,'' and include, but are not limited to,
limited disclosures necessary to conduct preliminary inquiries.
Sections 3.109 and 292.3--Discipline of Government Attorneys/
Immigration Judges
Comments. Many commenters expressed their concern that the proposed
rule applies only to private immigration practitioners and not to
Immigration Judges and/or Service trial attorneys. Since Immigration
Judges and Service trial attorneys are subject to the disciplinary
system which is overseen by the Department's Office of Professional
Responsibility (OPR), a system which regulates all Department
attorneys, many commenters stated that having two different systems is
unfair and suggested this was a denial of Equal Protection. Still other
commenters concluded that the rule will hamper legal advocacy and that
the ``major purpose of the rule is to intimidate private attorneys out
of practice'' and ``to deny aliens their statutory right to
representation.''
Response: Congress has broadly empowered the Attorney General
pursuant to 8 U.S.C. 1103, to ``establish such regulations * * * and
perform such other acts as she deems necessary for carrying out her
authority'' under the provisions of the Immigration and Nationality
Act. Congress delegated its plenary power over immigration matters in
order to advance, among other purposes, the public interest in deciding
whether to admit or exclude aliens.
Consistent with Congress's sweeping grant of authority to the
Attorney General in immigration matters, ``in any removal proceedings
before an immigration judge and in any appeal proceedings before the
Attorney General from such removal proceedings, the person concerned
shall have the privilege of being represented * * * by such counsel,
authorized to practice in such proceedings, as he shall choose''
(emphasis added). 8 U.S.C. 1362. Such statutory authority, which serves
as a primary basis for this disciplinary regulation, refers exclusively
to counsel for individuals subject to such proceedings, not to
Immigration Judges or attorneys for the government.
The Supreme Court has held that ``where the empowering provision of
a statute states simply that the agency may `make * * * such rules and
regulations as may be necessary to carry out the provisions of (an)
act,' * * * the validity of a regulation promulgated thereunder will be
sustained so long as it is `reasonably related to the purposes of the
enabling legislation.' '' Thorpe v. Housing Authority of the City of
Durham, 393 U.S. 268, 280-81 (1969). The general authority upon which
we rely herein to impose disciplinary sanctions properly gives heed to
Congress' enabling language and public interest purposes. Moreover, we
view the need to safeguard adjudicative processes, fairly decide cases,
and protect the public through implementation of this disciplinary
regulation as consonant with Congress's public interest intent.
Contrary to the assertion that such regulations will hamper counsel in
rendering legal assistance to aliens, we believe that these rules will
strengthen the effectiveness of representation and provide fairer
adjudications.
As one court stated in reference to the foregoing express grants of
authority from Congress, ``an agency empowered to prescribe its own
rules has the implied power to determine who can practice before it.''
Koden v. United States Dep't of Justice, 564 F.2d 228, 234 (7th Cir.
1977). In that case, the Seventh Circuit held that the authority
bestowed on the Attorney General is more than adequate to empower,
expressly or impliedly, an agency to set disciplinary standards
applicable to representatives. The Koden court upheld a disciplinary
regulation substantially similar to this one that had existed for over
25 years (at the time of the court's decision) and applied only to
private immigration practitioners.
Additionally, since 1975, OPR has had responsibility for
investigating allegations of misconduct against any of the Department's
lawyers, which today number over 9,000 individuals, including
Immigration Judges and Service trial attorneys, where such allegations
relate to the exercise of their authority to investigate, litigate,
adjudicate, or provide legal services. See 28 CFR 0.39. Such employees
are also subject to the jurisdiction of the Department's Office of
Inspector General. Among other rules, regulations, and orders,
Department attorneys must abide by the standards of conduct applicable
to executive branch employees and the Department's supplemental
standards of conduct. See 5 CFR part 2635 et seq.; 5 CFR part 3801 et
seq.
Such comprehensive standards and procedures, under the auspices of
OPR and the Office of Inspector General, are equally, if not more,
rigorous than those provided in this rule. They provide separate means
for seeking discipline of Immigration Judges and Department attorneys.
It should also be noted that on October 21, 1998, Congress amended
Chapter 31 of Title 28 of the United States Code by adding section 530B
in Public Law 105-277. This amendment, which went into effect on April
19, 1999, subjects Department attorneys to state laws and rules, and
local federal court rules, governing attorneys in each state where such
attorneys engage in their duties, to the same extent and in the same
manner as other attorneys in that state. See 64 FR 19273 (1999)
(Interim Rule on Ethical Standards for Attorneys for the Government).
Definitions
Comment. One commenter pointed out that the rule uses the term
``practitioner'' whereas the current rule uses the terms ``attorney''
and ``representative.''
Response: Use of the new term ``practitioner'' in the proposed rule
is simply for convenience when referring to both attorneys, as defined
in 8 CFR 1.1(f), and representatives, as defined in 8 CFR 1.1(j).
Disciplinary System Involving Both EOIR and INS
Comments. Many commenters expressed concerns over the two parallel
proceedings outlined in the proposed rule. They felt that the
jurisdiction between EOIR and the Service is unclear, that the two
systems are not necessary, that practitioners will have to be familiar
with the professional conduct requirements of two agencies, and that
two separate complaints could result in two punishments. Another
commenter thought that the Board and Immigration Judges already have
``plenary power to sanction attorneys.''
Response: Some commenters have characterized this rule as two
parallel disciplinary systems with the potential for two disciplinary
actions for the same
[[Page 39523]]
misconduct. This notion is incorrect; only one disciplinary system
exists and the delineations of authority are clear under the
regulation. If a complaint concerns a practitioner's conduct before the
Service in its adjudicative capacity (i.e., adjustment of status cases,
asylum cases, visa petition cases), then the complaint should be filed
with the Service, which will conduct a preliminary inquiry. If,
however, the basis of the complaint concerns a practitioner's conduct
before EOIR (i.e., the Board or the Immigration Courts), then the
complaint should be filed with EOIR, which will conduct a preliminary
inquiry. EOIR's jurisdiction to investigate and prosecute disciplinary
cases will not extend to cases over which the Service has adjudicatory
authority and, likewise, the Service's jurisdiction to investigate and
prosecute disciplinary cases will not extend to cases over which EOIR
has adjudicatory authority.
Between EOIR and the Service, there remains an expectation of
cooperation and communication in instances where it is unclear which
agency should take responsibility for investigating a complaint, i.e.,
if a complaint alleges misconduct that occurred before both agencies.
Each agency is required to serve a copy of a Notice of Intent to
Discipline on the other agency. Moreover, each agency may submit a
written request to the adjudicating official asking that any discipline
imposed upon a practitioner that restricts his or her authority to
practice before one agency also apply to his or her authority to
practice before the other agency. This will avoid the situation in
which a practitioner could be forced to go through two separate
disciplinary hearings for the same misconduct. It also gives the
adjudicating official the discretion to prohibit a practitioner from
continuing to practice before one agency pending suspension or
exclusion from the other. Without this provision, for example, a
practitioner who appears before EOIR and who has been suspended for
assisting others in the unauthorized practice of law could continue to
practice before the Service unless and until the Service conducted its
own separate proceeding.
Contrary to one commenter's suggestion, the Board and Immigration
Judges do not have ``plenary power to sanction attorneys.'' Until the
contempt rule is final (see discussion above), the revised set of
grounds as set forth in this disciplinary regulation is the only means
by which the Board and Immigration Judges may seek to remedy related
professional misconduct.
Procedures
Comments. Some commenters felt that there should be a right to
discovery while others felt that the Federal Rules of Evidence (FRE)
and/or the Federal Rules of Civil Procedure (FRCP) should be used in
disciplinary proceedings. One commenter asked under what circumstances
costs would be assessed to the practitioner. Another commenter
requested that hearings be held in the practitioner's city of practice
and that a hearing should be set automatically, regardless of whether a
hearing has been requested or the practitioner has failed to file an
answer to the Notice of Intent to Discipline. One commenter suggested
that the hearing should be closed to the public. Others suggested that
the 30-day time period to file an answer be extended to 60 days. Some
commenters would like to see the Disciplinary Committee establish rules
of procedure. Other commenters opined that the complaining party must
have standing to bring a complaint, e.g., the complainant must be an
``aggrieved party'' who can show harm or damage. One commenter
questioned how ongoing cases would be handled under the new rule.
Response: Disciplinary proceedings are designed to be conducted
under the same procedures which govern deportation and removal hearings
in Immigration Courts, practices which are familiar to both
adjudicating officials and practitioners. The proposed rule required
the Director of EOIR not only to appoint the adjudicating official, but
also to designate the time and place of the hearing. After further
review, however, this provision has been amended in several respects.
First, the final rule now gives the Chief Immigration Judge the
authority to appoint an Immigration Judge as the adjudicating official.
At the request of the Chief Immigration Judge or in the interest of
efficiency, however, the Director of EOIR may appoint an Administrative
Law Judge as an adjudicating official. Second, the adjudicating
official will designate the time and place of the hearing. This
amendment was added to give the adjudicating official more control over
the scheduling of the hearing. Third, the rule has been amended to
require the adjudicating official to designate the place of the hearing
``with due regard to the location of the practitioner's practice or
residence, the convenience of witnesses, and any other relevant
factors.'' Although it is most likely that the adjudicating official
will select a site for the hearing which is convenient for the
practitioner, this amendment does not require that such a selection be
made since there may be other important factors which might dictate
that another site is preferable. For example, it is reasonable to
predict that disciplinary proceedings will most likely be held in one
of EOIR's Immigration Courts, where such hearings are presently held,
so that proper administrative support, such as clerks and interpreters,
are available. Selection of such a hearing site might require the
practitioner to travel to that location.
Finally, the final rule has eliminated the terms ``Assistant Chief
Immigration Judge'' and ``Board Member'' as persons who may be
appointed as adjudicating officials. The term ``Assistant Chief
Immigration Judge'' was deleted because it was determined to be
unnecessary, since the term ``Immigration Judge'' is deemed to include
``Assistant Chief Immigration Judge.'' The term ``Board Member'' was
deleted since, under the final rule, the Board is now the appellate
reviewing body for disciplinary appeals, thereby eliminating the
possibility that Board Members could be appointed as adjudicating
officials.
The rule requires the practitioner to request a hearing if he or
she so desires, but does not make such a hearing mandatory. There may
be reasons why a practitioner may not want a hearing, e.g., the
practitioner intends to settle the case, does not want publicity, or
does not wish to expend the time and money necessary to prepare for a
hearing. To give the practitioner the option of having a hearing gives
him or her more control over the progression of the case. Further, the
rule does not allow for a hearing for a practitioner who fails to file
an answer to a Notice of Intent to Discipline.
One commenter suggested that all hearings be closed. However, the
prevailing procedure among state bars mandates that disciplinary
hearings be open to the public once a charging document has been filed.
The public has a right to know what transpires in such cases, and the
notion of conducting disciplinary hearings behind closed doors may
foster ignorance and raise doubts as to the nature of the proceedings.
It should be noted that there are two exceptions in the rule to a
public hearing. These include limitations of the physical facilities
and/or the need to protect witnesses, parties, or the public interest.
Another commenter suggested the time period to file an answer
should be extended from 30 to 60 days. In order for disciplinary
actions to be most effective, it is imperative that cases be
[[Page 39524]]
resolved in a timely manner. To provide a practitioner with 30 days to
file an answer is reasonable.
Another commenter stated that a complaining party must have
standing and must be an ``aggrieved party'' who can show harm or
damage. However, there is no reason to limit the ability of anyone to
file a complaint. The degree to which a complainant has been harmed
will go to the merits of the case itself, but should not preclude an
individual from filing a complaint. Moreover, it is anticipated that
complaints may come from adjudicators, Service personnel, aliens, or
practitioners themselves, all of whom may have first-hand knowledge of
practitioner misconduct.
One commenter questioned when costs might be assessed against the
practitioner. Assessment of costs is not available in Immigration Court
or at the Board, and benefits such as the use of interpreters have not
previously been charged against a party. In an effort to keep
disciplinary proceedings procedurally similar to Immigration Court
practice, the agency has decided not to assess costs in disciplinary
proceedings. Therefore, the provision concerning costs has been deleted
in the final rule.
With regard to ongoing cases in which a charging document has been
issued and filed with the Office of the Chief Immigration Judge prior
to the effective date of these regulations, such matters will proceed
to a final disposition under the previous regulations.
State Bars Are Appropriate Entities To Handle Complaints
Comments. Many commenters said that it is inappropriate for federal
agencies to unilaterally impose a national disciplinary scheme where
states should have sole jurisdiction and, further, that federal
regulations concerning discipline will cause confusion and uncertainty
with regard to state rules. Others objected that the rule subjects
practitioners to being disciplined twice for the same conduct--once by
the federal government and once by the state bar. Others believed that
this rule is an unnecessary and impermissible intrusion into the state
law licensure process and ``to bar a lawyer from practice before an
agency is unheard of.''
Response: In response to the comments that claim that this
regulation is an ``impermissible intrusion into the state law licensure
process'' and that it is ``inappropriate for federal agencies to
unilaterally impose a national disciplinary scheme where states should
have sole jurisdiction,'' we refer commenters to the U.S. Supreme Court
decision in Sperry v. Florida, 373 U.S. 379 (1963). In that case, the
state of Florida sought to enjoin a non-attorney registered to practice
before the United States Patent Office from preparing and prosecuting
patent applications in Florida because he was not a member of the
Florida Bar. The Supreme Court held that the federal government has
preemptive powers over states' legislative and judicial authorities
when acting under valid federal regulations. As noted above in the
supplementary information, EOIR and the Service maintain that under the
broad rulemaking authority of the Attorney General and the federal
government's preemptive powers, EOIR and the Service have the authority
(and indeed, have had the authority since these regulations were first
adopted more than 45 years ago) to promulgate disciplinary regulations
on a nationwide basis governing the privilege of appearing as an
attorney or representative before the Board, the Immigration Courts,
and the Service.
The commenters also claim that this regulation is unnecessary in
light of the 51 state bar disciplinary agencies (including the District
of Columbia) which regulate attorney conduct. The American Bar
Association (ABA) suggested that EOIR and the Service establish a
system by which complaints about attorneys alleged to have engaged in
misconduct be referred to state disciplinary authorities, and by which
such disciplinary authorities then would notify the agencies about
sanctioned lawyers. Since the ABA submitted almost identical comments
regarding the EOIR/Service rule and the Social Security
Administration's (SSA's) recently published rule on its disciplinary
system (see 63 FR 41404 (1998)), it appears that the organization is
expressing its general objection to federal oversight of the
professional conduct of those who appear before federal agencies.
In response to such comments, it should be noted that immigration
hearings are held in approximately 50 Immigration Courts located in 23
different states and territories. Moreover, attorneys often represent
aliens in jurisdictions other than those in which they are licensed to
practice law. It is imperative that EOIR and the Service administer a
uniform disciplinary system among the respective Immigration Courts.
For the reasons explained in SSA's supplementary information to their
disciplinary rule, EOIR and the Service should not be expected or
required to apply numerous local rules, or local interpretations of the
rules, to problems that require national uniformity. Applying local
rules or local interpretations in lieu of a national standard would
leave immigration attorneys in one state subject to discipline, while
possibly exempting immigration attorneys in another state. EOIR and the
Service do not believe that it would benefit the Board, the Immigration
Courts, the Service, the public, or attorneys to promote inconsistency
in regulating the conduct of practitioners, who all practice before the
same forum.
Similar to the SSA program, practice before EOIR and the Service is
not limited to attorneys, but includes non-attorneys who may not be
subject to state bar rules. EOIR and the Service believe that all
practitioners, attorneys and non-attorneys alike, must be held to
uniform standards of professional conduct in immigration proceedings.
Without this regulation, non-attorneys may not be accountable to any
disciplinary authority.
EOIR and the Service anticipate working closely with the various
state bars when investigating disciplinary complaints. Referrals to
state bars may be appropriate when a complaint does not allege a
violation of the federal regulations but may allege a violation of
state bar rules or regulations. Cooperation between the federal
government and the 51 state bar disciplinary authorities will optimize
resources and minimize duplication of investigations. In general, state
bars have not been resistant to the Federal government's efforts to
assist in protecting the public by scrutinizing the professional
conduct of attorneys. Moreover, immigration law is a very complex area
and this program may assist state bars with investigating allegations
of misconduct against immigration attorneys.
After publication of the proposed rule, the vast majority of
comments were from attorneys who opposed the idea of any Federal
government regulations of professional conduct. However, as we have
tried to emphasize in this final rule, the Department's imperatives,
including preserving the integrity of the Board, the Immigration
Courts, and the Service, ensuring the important and proper discharge of
statutory duties under the immigration laws of the United States, and
safeguarding a vulnerable client population, support continuing and
improving the reasonable and fair regulation of such conduct.
One comment in particular exemplified the peril of susceptible
[[Page 39525]]
clients, and was submitted by immigrant twin brothers who are law
students. After fleeing the former Yugoslavia, they arrived in the
United States with the hope of starting a new life. They feared for
their lives in their country and applied for political asylum so they
would not have to return to their country to face persecution and
possibly death. They retained an immigration attorney to help them file
the necessary applications. After appearing before an Immigration
Judge, the brothers were given a deadline to file their asylum
applications with the court, and a hearing date was set. The attorney
assured the brothers that the applications had been filed before the
deadline and that they did not need to show up for any further hearings
before the Immigration Judge.
During the ensuing months, the attorney continued to pressure the
brothers for additional legal fees, telling them he needed to file more
paperwork. He told them to expect to receive their permanent resident
cards in the mail. After numerous attempts to contact the attorney over
the next several years, the brothers finally went to the Immigration
Court to find out the status of their case. Much to their surprise,
they learned that their case had been dismissed after the Immigration
Judge and the Board considered their requests for asylum to be
abandoned when no applications had been submitted by the deadline. The
brothers then contacted their attorney who told them that he had never
received anything from the Immigration Court or the Service.
Eventually, they hired a new attorney who helped them correct the
mistakes of the former attorney by filing a motion to reopen based on
ineffective assistance of counsel. The brothers wrote: ``The
immigration problem which faces this great nation of ours is caused by
many of the immigration attorneys who misrepresent their clients who
often do not speak (the) English language and do not understand
immigration law. * * * The proposed rule is a rule which needs to be
used in practice. It needs to be enacted in order to deter the
misconduct of attorneys who practice immigration law. These attorneys
like our former attorney are taking advantage of the most vulnerable
group of people in our society. Your office would serve a great deal in
this process by properly investigating, and determining which
complaints have merit. * * * This rule makes good on a pledge by the
Attorney General to deter the bad conduct of immigration attorneys.
Hopefully, this letter will inform you that (the) rule is needed and
wanted by not only immigrants like us but also future legal
professionals.''
Regulatory Flexibility Act
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule affects only those practitioners who practice
immigration law before EOIR and the Service. Approximately 5000
immigration and 400 accredited representatives will be subject to this
rule. This rule will not have a significant adverse economic impact on
a substantial number of small entities because the rule is similar in
substance to the existing regulatory process and will affect only those
practitioners who have committed serious crimes or who have lost their
license to practice law or otherwise engaged in professional
misconduct. Therefore, this rule does not have a significant economic
impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices, or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review'', section
1(b), Principles of Regulation. The Department of Justice has
determined that this rule is not a ``significant regulatory action''
under Executive Order 12866, section 3(f), and accordingly this rule
has not been reviewed by the Office of Management and Budget.
Executive Order 12612
This regulation 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 Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Plain Language Instructions
We try to write clearly. If you can suggest how to improve the
clarity of these regulations, call or write Charles Adkins-Blanch,
Acting General Counsel, Executive Office for Immigration Review, 5107
Leesburg Pike, Suite 2400, Falls Church, Virginia, 22041, telephone
(703) 305-0470.
List of Subpart
8 CFR Part 3
Administrtive practice and procedure, Immigration, Legal services,
Organizataion and functions (Government agencies), Reporting and
recordkeeping requirements.
8 CFR Part 292
Administrative practice and procedures, Immigration, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, parts 3 and 292 of title
8 of the Code of Federal Regulations are amended as follows:
PART 3--EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
1. The authority citation for Part 3 continues to read as follows:
Authority: 5 U.S.C. 301; 8 U.S.C. 1103; 1252 note, 1252b, 1324b,
1362; 28 U.S.C. 509, 510, 1746; sec. 2, Reorg. Plan No. 2 of 1950, 3
CFR, 1949-1953 Comp., p. 1002; section 203 of Pub L. 105-100.
2. In section 3.1, add paragraph (b)(13) and revise paragraph
(d)(3) to read as follows:
Sec. 3.1 [Amended]
(b) * * *
(13) Decisions of adjudicating officials in practitioner
disciplinary proceedings as provided in subpart G of this part.
* * * * *
(d) * * *
(3) Rules of practice. The Board shall have authority, with the
approval of the
[[Page 39526]]
Director, EOIR, to prescribe rules governing proceedings before it. It
shall also determine whether any organization and/or individual
desiring to represent aliens in immigration proceedings meets the
requirements as set forth in Sec. 292.2 of this chapter.
3-4. Section 3.1(d)(1-a)(ii) is amended by revising the reference
to ``Sec. 292.3(a)(15) of this chapter'' in the first sentence to read
``Sec. 3.102(j).''
Sec. 3.12 [Amended]
5. Section 3.12 is amended by revising the reference to
``Sec. 292.3 of this chapter'' in the second sentence to read ``this
part 3.''
Subpart F--[Reserved]
6. Subpart F is added and reserved.
7. Subpart G is added to Part 3 to read as follows:
Subpart G--Professional Conduct for Practitioners--Rules and Procedures
Sec.
3.101 General provisions.
3.102 Grounds.
3.103 Immediate suspension and summary disciplinary proceedings;
duty of practitioner to notify EOIR of correction or discipline.
3.104 Filing of complaints; preliminary inquiries; resolutions;
referral of complaints.
3.105 Notice of Intent to Discipline.
3.106 Hearing and disposition.
3.107 Reinstatement after expulsion or suspension.
3.108 Confidentiality.
3.109 Discipline of government attorneys.
Subpart G--Professional Conduct for Practitioners--Rules and
Procedures
Sec. 3.101 General provisions.
(a) Authority to sanction. An adjudicating official or the Board of
Immigration Appeals (the Board) may impose disciplinary sanctions
against any practitioner if it finds it to be in the public interest to
do so. It will be in the public interest to impose disciplinary
sanctions against a practitioner who is authorized to practice before
the Board and the Immigration Courts when such person has engaged in
criminal, unethical, or unprofessional conduct, or in frivolous
behavior, as set forth in Sec. 3.102. In accordance with the
disciplinary proceedings set forth in this subpart and outlined below,
an adjudicating official or the Board may impose any of the following
disciplinary sanctions:
(1) Expulsion, which is permanent, from practice before the Board
and the Immigration Courts or the Immigration and Naturalization
Service (the Service), or before all three authorities;
(2) Suspension, including immediate suspension, from practice
before the Board and the Immigration Courts or the Service, or before
all three authorities;
(3) Public or private censure; or
(4) Such other disciplinary sanctions as the adjudicating official
or the Board deems appropriate.
(b) Persons subject to sanctions. Persons subject to sanctions
include any practitioner. A practitioner is any attorney as defined in
Sec. 1.1(f) of this chapter who does not represent the federal
government, or any representative as defined in Sec. 1.1(j) of this
chapter. Attorneys employed by the Department of Justice shall be
subject to discipline pursuant to Sec. 3.109. Nothing in this
regulation shall be construed as authorizing persons who do not meet
the definition of practitioner to represent individuals before the
Board and the Immigration Courts or the Service.
Sec. 3.102 Grounds.
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