ILW.COM - immigration news: EOIR Proposed Rule

[Federal Register: December 30, 2003 (Volume 68, Number 249)] [Proposed Rules] [Page 75160-75164] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr30de03-21] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Executive Office for Immigration Review 8 CFR Parts 1001, 1292 [EOIR No. 138P; AG Order 2700-2003] RIN 1125-AA39 Executive Office for Immigration Review Attorney/Representative Registry AGENCY: Executive Office for Immigration Review, Justice. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: This proposed rule would amend the regulations pertaining to appearances by attorneys and representatives before the Executive Office for Immigration Review (EOIR). This proposed rule authorizes the Director, EOIR, or his designee to register attorneys and representatives as [[Page 75161]] a condition of practicing before immigration judges and the Board of Immigration Appeals. The proposed rule also provides that the Director or his designee will establish registration procedures including a requirement for electronic registration, and may administratively suspend from practice before EOIR any practitioner who fails to provide certain registration information. DATES: Written comments must be submitted on or before March 1, 2004. ADDRESSES: Please submit written comments to Charles Adkins-Blanch, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041. To ensure proper handling, please reference RIN No. 1125-AA39 on your correspondence. The public may also submit comments electronically to EOIR at regulations.comments@usdoj.gov. When submitting comments electronically, you must include RIN No. 1125-AA39 in the subject box. FOR FURTHER INFORMATION CONTACT: Charles Adkins-Blanch, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041, telephone (703) 305-0470 (not a toll-free call). SUPPLEMENTARY INFORMATION: This proposed rule would authorize the Director, Executive Office for Immigration Review (``EOIR''), or his designee to register all attorneys and representatives (``practitioners'') entering appearances before immigration judges and the Board of Immigration Appeals (``Board'') as a condition of practicing before EOIR. The Director or his designee also would be authorized under the proposed rule to establish procedures for registration. Following an initial registration period, practitioners would need to include their registration identification (``UserID'') on any new entry of appearance (i.e., the filing of Forms EOIR-27 or EOIR- 28). Reasons for Issuing This Proposed Rule The Department is updating and integrating its immigration court and Board databases, and designing an electronic case access and filing system, to comply with the Government Paperwork Elimination Act (``GPEA''), to achieve the Department's vision for improved immigration adjudication processing, and to meet the public expectations for electronic government. 44 U.S.C. 3504 note. The GPEA provides that the Office of Management and Budget (``OMB'') must ensure that no later than October 21, 2003, executive agencies provide for the option of electronic submission of information, when practicable, as a substitute for paper. The practitioner registration process contemplated by the Department for EOIR will initially enable EOIR to distribute a unique UserID to all practitioners. The UserIDs will be a core component in a redesigned case tracking system, ensuring a single, unique identification for each practitioner appearing before immigration judges and the Board. Application of the unique UserID will reduce system errors in scheduling matters and will provide improved notice to practitioners. In conjunction with a UserID, passwords will also be issued to practitioners to permit them to maintain and update registration information electronically (via the Internet) and, in the future, to access the EOIR electronic filing system for submission and retrieval of documents. Procedures for Registering With EOIR EOIR will implement an on-line registration process that will be mandatory for practitioners. For practitioners without access to the Internet, a dedicated Practitioner Workstation will be made available at each public EOIR facility, including the immigration courts and Board clerk's office. For the initial registration, practitioners must complete an electronic registration that includes the following information: Full name, date of birth, last four digits of social security number, mailing addresses, and e-mail address. Only one e-mail address will be permitted; however, multiple mailing addresses may be used by practitioners with multiple office locations. Registrants will also be required to submit limited background data, such as bar admissions (for attorneys) and the recognized organization with which the individual is associated (for accredited representatives), in order to demonstrate that they meet the regulatory requirements for authorization to practice before EOIR. Upon completion of the registration process, the EOIR registration system will send a password and a verification of registration to the practitioner's e-mail address. Registrants who have completed only the initial registration requirements (full name, date of birth, last four digits of social security number, mailing addresses, and e-mail address) will be prompted electronically to complete registration. In such cases, both e-mail and mail notices will be generated to the addresses entered in the initial registration, allowing a two-week deadline for completing the full registration process. Required Registrants All attorneys and representatives, as defined by 8 CFR 1001.1(f) and (j), will be required to register with EOIR as a condition of representing individuals before the immigration judges and the Board. Law firms or other similar entities will not be issued a UserID. Practitioners working on behalf of a law firm (including attorneys, law graduates, and law students) or other entity (such as accredited representatives employed by recognized organizations) must individually register with EOIR. Registration Deadline Using a number of media, EOIR will provide practitioners with advance notice of the deadline for registering and obtaining a UserID. During the transition period to the newly integrated EOIR case management system, procedures will be in place to permit practitioners to associate existing cases with their new UserID and password. The Department contemplates that the full development of the system will take substantial time, and the system will be activated initially to permit an ``open season'' for registration before making compliance with registration requirements mandatory. Therefore, EOIR will provide a minimum of 60 days advance publicity of the availability of the system before adherence to the registration system's requirements will become mandatory for practitioners. Practitioners Who Do Not Have an E-Mail Address An e-mail address will be a required field in the Registration Form. If an e-mail address is not entered, a registration system prompt will request that practitioners re-enter their e-mail address. A second system prompt will ask if the practitioner possesses an e-mail address. If the practitioner does not have an e-mail address, a message will be displayed that the system will send the notice automatically to the practitioner's physical address using the United States Post Office's e-mail postal addressing capabilities. EOIR will assume the cost of mailing this notice. Entry of Appearance Requires a UserID After the effective date of the final registration regulation, practitioners will be required to have a UserID to file an Entry of Appearance in a case. If a practitioner appears in person at any public office of EOIR to file an Entry of Appearance but does not have a UserID, the staff will direct the practitioner to a [[Page 75162]] Practitioner Workstation in the public area of the Board's clerk's office or the immigration court on which he or she may register and receive a UserID. The practitioner will enter all information he or she has available and will be permitted to choose a UserID. The registration system will accept the full or initial registration data, and send the practitioner an e-mail message containing a password. If an unregistered practitioner mails an Entry of Appearance to the Board clerk's office or immigration court, with or without other documents (pleadings, etc.), the clerk's office or court staff may reject the Entry of Appearance and return it for completion of the registration process. The clerk's office staff will process any accompanying documents as if they had been filed by the unregistered practitioner's client acting on his or her own behalf. Failure To Register or Failure To Complete the Registration Process Practitioners who fail to register will not be allowed to represent clients before the immigration judges or the Board. Practitioners who only complete an initial registration will be notified by e-mail (or United States mail, if appropriate) of the two- week deadline for completing registration. If registration is not completed by that deadline, a second notice setting an additional two- week deadline will be sent to the same practitioner address(es), warning of administrative suspension from practice before EOIR if registration is not completed timely. A third notice will inform the practitioner that his or her right to practice before immigration judges and the Board has been suspended administratively until registration is completed. Copies of this notice will be sent to all identifiable clients with matters before EOIR. Additionally, the practitioner's UserID and password that EOIR provided during initial registration will be deactivated. Extraordinary Circumstances After the effective date of the final regulation, and under extraordinary and rare circumstances, an immigration judge may permit an unregistered practitioner to appear at a single hearing by registering before the immigration judge. For example, an unregistered practitioner unfamiliar with immigration practice before immigration judges and the Board, or an unregistered practitioner hired immediately before a hearing commences, may be permitted to appear before an immigration judge. However, the immigration judge must secure the required practitioner's registration information on the record proceedings, in addition to the practitioner's Notice of Appearance on Form EOIR-28. The immigration judge will also instruct the practitioner to register on-line immediately after the hearing. At the time the Form EOIR-28 information that is received during the hearing is entered into the case management information system, the EOIR staff will inquire of the system whether the practitioner has completed registration pursuant to the immigration judge's instructions. If not, EOIR staff will enter into the database the practitioner's information previously secured by the immigration judge. The system will then create a permanent UserID for the practitioner, using an algorithm based on last name and first name, and assign a password. An e-mail message will notify the practitioner of the UserID and password. As previously noted, a practitioner without an e-mail address will be notified at the practitioner's physical address using the United States Post Office's e-mail postal addressing capabilities. Thereafter, the practitioner will be able to modify the password but not the UserID. Regulatory Flexibility Act The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. As described more fully below in the Executive Order 12866 certification, the Department estimates that approximately 26,000 attorneys and representatives will electronically register. It is not known how many of these attorneys and representatives are ``small entities'' as defined by the Regulatory Flexibility Act. There is no fee to register. Consequently, the Department believes the costs to practitioners to electronically register with EOIR will be nominal. Practitioners will greatly benefit under this registration process by paving the way to future access to an electronic EOIR case access and filing system. Moreover, the future ability to electronically file a Notice of Appearance will reduce the practitioner's costs. 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 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. Executive Order 12866 The proposed rule is considered by the Department of Justice to be a ``significant regulatory action'' under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, the regulation has been submitted to the Office of Management and Budget for review. The rule establishes procedures for attorneys and representatives to enroll formally with EOIR as a condition of representing aliens before immigration judges and the Board. Requiring practitioners to register electronically with EOIR is a necessary precursor to implementing an electronic case access and filing system. Under the registration process, EOIR will be able to determine whether a practitioner is authorized to represent aliens before immigration judges or the Board. EOIR will also distribute to each authorized registrant a unique EOIR UserID and password that will permit future access to an electronic filing system for submission and retrieval of information and documents pertaining to administrative immigration proceedings. An on-line registration process will be required for practitioner registration. For practitioners without access to the Internet, a dedicated Practitioner Workstation will be made available at each public facility of EOIR. For the initial registration, practitioners must complete an electronic registration in which they must provide the following information: full name, date of birth, last four digits of social security number, mailing addresses, and e-mail address. Registrants will also be required to submit limited background data, such as bar admissions (for attorneys) and the [[Page 75163]] recognized organization with which the individual is associated (for accredited representatives). The Department estimates that approximately 26,000 attorneys and representatives will electronically register, a process that will take approximately 10 minutes for each registrant. There is no fee to register. Consequently, the Department believes the costs to practitioners to electronically register with EOIR will be nominal. Practitioners will greatly benefit under this registration process by paving the way to future access to an electronic EOIR case access and filing system. The future system will allow practitioners to electronically submit and retrieve information pertaining to administrative immigration proceedings. Executive Order 13132 This rule will not have substantial direct effects on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Department has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. Executive Order 12988 This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform. Paperwork Reduction Act The United States Department of Justice has submitted a request for approval of a new information collection instrument to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995. The proposed new information collection is published in this document to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days in conjunction with the proposed rule. This process is in accordance with 5 CFR. 1320.10. If you have any comments, especially on the estimated public burden or associated response time, or suggestions, or need a copy of the proposed new information collection instrument with instructions or additional information, please contact the Department as noted above. Written comments and suggestions from the public and affected agencies concerning the proposed new information collection instrument are encouraged. Your comments should address one or more of the following four points: (1) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) how the Department could enhance the quality, utility, and clarity of the information to be collected; and (4) how the Department could minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g., permitting electronic submission of responses). The new information collection instrument sponsored by the Department will apply to practitioners and has been designated as ``Practitioner Registration Before the Executive Office for Immigration Review.'' The new collection will be administered through electronic means exclusively (Internet and/or dedicated terminals at EOIR locations). The collected information will be used to (1) determine whether or not a responding attorney or representative, as defined by 8 CFR 1001.1(f) and (j) (as amended herein), meets the regulatory criteria to be authorized to represent aliens before EOIR (Board of Immigration Appeals or immigration judges) and (2) distribute a unique EOIR UserId and password to each registrant that will permit future access to an electronic EOIR filing system for submission and retrieval of information and documents pertaining to administrative immigration proceedings. The Department estimates an average response time for the new information collection instrument at 10 minutes per response, with a total number of respondents at 26,000 individuals. The total public burden associated with the new collection is 4,333 burden hours. List of Subjects 8 CFR Part 1001 Administrative practice and procedure, Aliens, Definitions, Immigration, Legal Services, Organization and functions (Government agencies). 8 CFR Part 1292 Administrative practice and procedure, Immigration, Lawyers, Reporting and recordkeeping requirements. Accordingly, for the reasons set forth in the preamble, 8 CFR Parts 1001 and 1003 are proposed to be amended as follows: PART 1001--DEFINITIONS 1. The authority citation for part 1001 is revised to read as follows: Authority: 8 U.S.C. 1101, 1103; 6 U.S.C. 521, 522; 8 CFR part 2. 2. In Sec. 1001.1, revise paragraphs (f) and (j) to read as follows: Sec. 1001.1 Definitions. * * * * * (f) The term attorney means any person who is a member in good standing of the bar of the highest court of any State, possession, territory, Commonwealth, or the District of Columbia, and is not under any order of any court suspending, enjoining, restraining, disbarring, or otherwise restricting him in the practice of law, and who is registered to practice with the Executive Office for Immigration Review pursuant to 8 CFR 1292.1. * * * * * (j) The term representative means a person who is entitled to represent others as provided in 8 CFR 1292.1(a) (2), (3), (4), (5), (6), and 1292.1(b) and who is registered to practice with the Executive Office for Immigration Review pursuant to 8 CFR 1292.1. * * * * * [[Page 75164]] PART 1292--REPRESENTATIVES AND APPEARANCES 3. The authority citation for part 1292 is revised to read as follows: Authority: 8 U.S.C. 1103, 1302, 1359; 6 U.S.C. 521, 522. 4. Section 1292.1 is amended by adding a new paragraph (f) to read as follows: Sec. 1292.1 Representation of others. * * * * * (f) Registration requirement for attorneys and representatives. The Director or his designee is authorized to register, and establish procedures for registering, attorneys and representatives, as defined by 8 CFR 1001.1(f) and (j), as a condition of practice before immigration judges or the Board of Immigration Appeals. Such registration procedures will include a requirement for electronic registration. The Director or his designee may administratively suspend from practice before the immigration judges and the Board any attorney or representative who fails to provide the following required registration information: practitioner name, address(es), date-of- birth, last four digits of social security number, e-mail address (if applicable) and bar admission information (if applicable). After such a system has been established, an immigration judge may, under extraordinary and rare circumstances, permit an unregistered practitioner to appear at one, and only one, hearing if the immigration judge first acquires from the attorney or representative, on the record, the required registration information. An unregistered practitioner who is permitted to appear at a hearing in such circumstances shall complete the electronic registration process immediately after the hearing at which he or she is permitted to appear. Dated: December 22, 2003. John Ashcroft, Attorney General. [FR Doc. 03-32019 Filed 12-29-03; 8:45 am] BILLING CODE 4410-30-P

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