[Federal Register Volume 62, Number 40 (Friday, February 28, 1997)]
[Rules and Regulations]
[Pages 9071-9075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5039]
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DEPARTMENT OF JUSTICE
8 CFR Parts 3, 103, 212, 235, 236, 242, 287, 292, 292a
[EOIR No. 113F; A.G. Order No. 2070-97]
RIN 1125-AA14
Executive Office for Immigration Review; List of Free Legal
Services Providers
AGENCY: Executive Office for Immigration Review, Justice.
ACTION: Final rule.
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SUMMARY: This final rule transfers the responsibility for maintaining
the list of organizations providing free legal services in immigration
proceedings from the Immigration and Naturalization Service (INS) to
the Executive Office for Immigration Review (EOIR), Office of the Chief
Immigration Judge, and amends the regulations by permitting attorneys
who provide free legal services to indigent aliens to apply to be
included on the list. The rule also amends the regulations by
transferring appellate jurisdiction from the Associate Commissioner for
Examinations, INS, to the Board of Immigration Appeals for appeals from
decisions on applications to be included on the list of free legal
services providers and from decisions on removals from such a list.
Finally, this rule will further implementation of section 604(d)(4) of
the recently enacted Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 by requiring that the list of free legal
services providers maintained by the Chief Immigration Judge include a
list of persons who have indicated their availability to represent
aliens in asylum proceedings on a pro bono basis.
EFFECTIVE DATE: March 31, 1997.
FOR FURTHER INFORMATION CONTACT:
Margaret M. Philbin, General Counsel, Executive Office for Immigration
Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041,
telephone (703) 305-0470.
SUPPLEMENTARY INFORMATION: On August 5, 1996, the Executive Office for
Immigration Review published a proposed rule in the Federal Register
(61 FR 40552) amending 8 CFR parts 3 and 292a by transferring the
responsibility for maintaining the list of entities that will provide
free legal services in immigration proceedings from INS to EOIR, Office
of the Chief Immigration Judge. This list of organizations and
attorneys, qualified pursuant to this rule, who can represent aliens in
immigration proceedings before the Board of Immigration Appeals and the
Immigration Courts is given to aliens who are parties in immigration
proceedings in an Immigration Court. This rule amends the present
regulation by permitting attorneys who provide free legal services to
indigent aliens to apply to be included on the list of free legal
services providers.
In response to the above rulemaking, EOIR received two comments.
One commenter noted that there may be areas where Immigration Courts
are
[[Page 9072]]
located but where no organizations or attorneys are available to
represent aliens on a pro bono basis. The commenter suggested that the
Immigration Courts should also maintain lists of private attorneys who
regularly practice before each of the Courts. Such lists could be
distributed to aliens in need of counsel, and any licensed attorney
would be able to place his or her name on the lists.
However, EOIR has promulgated this rule in order to enhance the
opportunities for indigent aliens to find free legal counsel by
providing them with a list of organizations and attorneys who are
willing to represent them on a pro bono basis. Moreover, the statutory
basis to formulate and maintain such lists requires that the lists be
maintained for this purpose. See 8 U.S.C. 1252(b)(2). Therefore, this
suggestion will not be adopted.
The same commenter also inquired as to whether an attorney must
accept a certain number of pro bono cases in order to be included on
the list of free legal services providers, and whether an attorney
would be prohibited from accepting any cases, or a certain percentage
of cases, for a fee. EOIR does not believe it is necessary or advisable
to require an attorney to accept a specific number or percentage of
cases on a pro bono basis in order to be included on the list of free
legal services providers. Nor will an attorney included on the list be
precluded from accepting cases for a fee. An attorney included on the
list may continue serving a wide range of paying clients as long as he
or she agrees to represent indigent aliens on a pro bono basis.
However, if it comes to EOIR's attention that an attorney who is
included on the list is not, in fact, accepting cases on behalf of
indigent aliens on a pro bono basis, the regulation provides that the
Chief Immigration Judge, or his or her designee, may remove the
attorney's name from the list after giving the attorney notice and an
opportunity to answer. Moreover, this issue is subject to further
review if necessary to eliminate any abuses.
The other commenter expressed concern that the proposed rule
provided that only an organization that has on its staff, or retains at
no expense to the alien, an attorney who is available to render free
legal services, or a bar association that provides a referral service
of attorneys who render pro bono assistance, may apply to be included
on the list of free legal services providers, while organizations other
than bar associations that provide referral services for indigent
aliens could not apply to be included on the list. The commenter
therefore suggested that the rule be amended to include additional
organizations that provide referral services for indigent aliens.
While the purpose of this regulation is to enhance the
opportunities for indigent aliens to find free legal counsel by
expanding the list of organizations and attorneys who are willing to
represent them on a pro bono basis, EOIR also recognizes the need to
ensure that only organizations with bona fide referral services be
included on the list. Therefore, the rule has been amended to allow
organizations that operate referral services to apply to be on the list
and to allow the Chief Immigration Judge to exercise his or her
discretion in ruling on such applications.
Finally, this rule furthers implementation of section 604(d)(4) of
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. 104-208, by having the list of free legal services
providers maintained by the Chief Immigration Judge include a list of
persons who have indicated their availability to represent aliens in
asylum proceedings on a pro bono basis.
Although the rule requires that an organization or attorney file an
application requesting to be placed on the list of free legal services
providers, there is no specific application form being used for this
request at the present time. Further, any organization that is on the
current list of free legal services providers will not need to apply at
this time to be included on the new list. All organizations on the
current list will be contacted by the Office of the Chief Immigration
Judge, or his or her designee, to determine if they intend to remain on
the list and to verify identifying information, such as address and
telephone number. Any organizations that cannot be reached will not be
included on the new list.
In accordance with 5 U.S.C. 605(b), the Attorney General certifies
that this rule does not have a significant adverse economic impact on a
substantial number of small entities. The Attorney General has
determined that this rule is not a significant regulatory action under
Executive Order No. 12866, and accordingly this rule has not been
reviewed by the Office of Management and Budget. This rule has no
Federalism implications warranting the preparation of a Federalism
Assessment in accordance with section 6 of Executive Order No. 12612.
The rule merits the applicable standards provided in sections 3(a) and
3(b)(2) of Executive Order No. 12988.
List of Subjects
8 CFR Part 3
Administrative practice and procedure, Immigration, Lawyers,
Organizations and functions (Government agencies), Reporting and
recordkeeping requirements.
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of Information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
8 CFR Part 242
Administrative practice and procedure, Aliens.
8 CFR Part 287
Immigration, Law enforcement officers.
8 CFR Part 292
Administrative practice and procedure, Immigration, Lawyers,
Reporting and recordkeeping requirements.
8 CFR Part 292a
Aliens, Legal services.
Accordingly and under the authority of 8 U.S.C. 1103, chapter I of
title 8 of the Code of Federal Regulations is 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, 1362;
28 U.S.C. 509, 510, 1746; Sec. 2, Reorg. Plan No. 2 of 1950, 3 CFR
1949-1953 Comp., p. 1002.
2. Section 3.1 is amended by adding a new paragraph (b)(11) to read
as follows:
Sec. 3.1 General authorities.
* * * * *
(b) * * *
[[Page 9073]]
(11) Decisions on applications from organizations or attorneys
requesting to be included on a list of free legal services providers
and decisions on removals therefrom pursuant to Sec. 3.65.
* * * * *
Subpart D [Added and Reserved]
3. Subpart D is added and reserved.
4. A new Subpart E is added to read as follows:
Subpart E--List of Free Legal Services Providers
Sec.
3.61 List.
3.62 Qualifications.
3.63 Applications.
3.64 Approval and denial of applications.
3.65 Removal of an organization or attorney from list.
Subpart E--List of Free Legal Services Providers
Sec. 3.61 List.
(a) The Chief Immigration Judge shall maintain a current list of
organizations and attorneys qualified under this subpart which provide
free legal services. This list, which shall be updated not less than
quarterly, shall be provided to aliens in immigration proceedings. The
Chief Immigration Judge may designate an employee or employees to carry
out his or her responsibilities under this subpart. Organizations and
attorneys may be included on the list of free legal services providers
if they qualify under one of the following categories:
(1) Organizations recognized under Sec. 292.2 of this chapter that
meet the qualifications set forth in Sec. 3.62(a) and whose
representatives, if any, are authorized to practice before the Board
and Immigration Courts;
(2) Organizations not recognized under Sec. 292.2 of this chapter
that meet the qualifications set forth in Sec. 3.62(b);
(3) Bar associations that meet the qualifications set forth in
Sec. 3.62(c); and
(4) Attorneys, as defined in Sec. 1.1(f) of this chapter, who meet
the qualifications set forth in Sec. 3.62(d).
(b) The listing of an organization qualified under this subpart is
not equivalent to recognition under Sec. 292.2 of this chapter.
Sec. 3.62 Qualifications.
(a) Organizations recognized under Sec. 292.2. An organization that
is recognized under Sec. 292.2 of this chapter that seeks to have its
name appear on the list of free legal services providers maintained by
the Chief Immigration Judge must have on its staff:
(1) An attorney, as defined in Sec. 1.1(f) of this chapter; or
(2) At least one accredited representative, as defined in
Sec. 292.1(a)(4) of this chapter, who is authorized to practice before
the Board and Immigration Courts.
(b) Organizations not recognized under Sec. 292.2. An organization
that is not recognized under Sec. 292.2 of this chapter that seeks to
have its name appear on the list of free legal services providers
maintained by the Chief Immigration Judge must declare that:
(1) It is established in the United States;
(2) It provides free legal services to indigent aliens; and
(3) It has on its staff, or retains at no expense to the alien, an
attorney, as defined in Sec. 1.1(f) of this chapter, who is available
to render such free legal services by representation in immigration
proceedings.
(c) Bar associations. A bar association that provides a referral
service of attorneys who render pro bono assistance to aliens in
immigration proceedings may apply to have its name appear on the list
of free legal services providers maintained by the Chief Immigration
Judge. Any other organization that provides such a referral service may
also apply to have its name appear on the list of free legal services
providers, and may, in the sole discretion of the Chief Immigration
Judge, be included on the list.
(d) Attorneys. An attorney, as defined in Sec. 1.1(f) of this
chapter, who seeks to have his or her name appear on the list of free
legal services providers maintained by the Chief Immigration Judge must
declare in his or her application that he or she provides free legal
services to indigent aliens and that he or she is willing to represent
indigent aliens in immigration proceedings pro bono. An attorney under
this section may not receive any direct or indirect remuneration from
indigent aliens for representation in immigration proceedings, although
the attorney may be regularly compensated by the firm or organization
with which he or she is associated.
Sec. 3.63 Applications.
(a) Generally. In order to qualify to appear on the list of free
legal services providers maintained by the Chief Immigration Judge
under this subpart, an organization or attorney must file an
application requesting to be placed on the list. This application must
be filed with the Office of the Chief Immigration Judge, along with
proof of service on the Court Administrator of the Immigration Court
having jurisdiction over each locality where the organization or
attorney provides free legal services. Each submission must be
identified by the notation ``Application for Free Legal Services
Providers List'' on the envelope, and must also indicate if the
organization or attorney is willing to represent indigent aliens in
asylum proceedings.
(b) Organizations recognized under Sec. 292.2. An organization that
is recognized under Sec. 292.2 of this chapter must submit a
declaration signed by an authorized officer of the organization which
states that the organization complies with all of the qualifications
set forth in Sec. 3.62(a).
(c) Organizations not recognized under Sec. 292.2. An organization
that is not recognized under Sec. 292.2 of this chapter must submit a
declaration signed by an authorized officer of the organization which
states that the organization complies with all of the qualifications
set forth in Sec. 3.62(b).
(d) Attorneys. An attorney must:
(1) Submit a declaration that states that:
(i) He or she provides free legal services to indigent aliens;
(ii) He or she is willing to represent indigent aliens in
immigration proceedings pro bono; and
(iii) He or she is not under any order of any court suspending,
enjoining, restraining, disbarring, or otherwise restricting him or her
in the practice of law; and
(2) Include the attorney's bar number, if any, from each bar of the
highest court of the state, possession, territory, or commonwealth in
which he or she is admitted to practice law.
(e) Changes in addresses or status. Organizations and attorneys
referred to in this subpart are under a continuing obligation to notify
the Chief Immigration Judge, in writing, within ten business days, of
any change of address, telephone number, or qualifying or professional
status. Failure to notify the Chief Immigration Judge of any such
change may result in the name of the organization or attorney being
removed from the list.
Sec. 3.64 Approval and denial of applications.
The Court Administrator of the Immigration Court having
jurisdiction over each locality where an organization or attorney
provides free legal services shall forward a recommendation for
approval or denial of each application submitted by the organization or
attorney, and the reasons therefor, to the Chief Immigration Judge. The
Chief Immigration Judge shall have the authority to approve or deny an
application submitted by an organization or an attorney pursuant to
Sec. 3.63. If an application is denied, the
[[Page 9074]]
organization or attorney shall be notified of the decision in writing,
at the organization's or attorney's last known address, and shall be
given a written explanation of the grounds for such denial. A denial
must be based on the failure of the organization or attorney to meet
the qualifications and/or to comply with the procedures set forth in
this subpart. The organization or attorney shall be advised of its, his
or her right to appeal this decision to the Board of Immigration
Appeals in accordance with Sec. 3.1(b) and Sec. 103.3(a)(1)(ii) of this
chapter.
Sec. 3.65 Removal of an organization or attorney from list.
(a) Involuntary removal. If the Chief Immigration Judge believes
that an organization or attorney included on the list of free legal
services providers no longer meets the qualifications set forth in this
subpart, he or she shall promptly notify the organization or attorney
in writing, at the organization's or attorney's last known address, of
his or her intention to remove the name of the organization or attorney
from the list. The organization or attorney may submit an answer within
30 days from the date the notice is served. The organization or
attorney must establish by clear, unequivocal, and convincing evidence
that the organization's or attorney's name should not be removed from
the list. If, after consideration of any answer submitted by the
organization or attorney, the Chief Immigration Judge determines that
the organization or attorney no longer meets the qualifications set
forth in this subpart, the Chief Immigration Judge shall promptly
remove the name of the organization or attorney from the list of free
legal service providers, the removal of which will be reflected in the
next quarterly update, and shall notify the organization or attorney of
such removal in writing, at the organization's or attorney's last known
address. Organizations and attorneys shall be advised of their right to
appeal this decision to the Board of Immigration Appeals in accordance
with Sec. 3.1(b) and Sec. 103.3(a)(1)(ii) of this chapter.
(b) Voluntary removal. Any organization or attorney qualified under
this subpart may, at any time, submit a written request to have its,
his or her name removed from the list of free legal service providers.
Such a request shall be honored, and the name of the organization or
attorney shall promptly be removed from the list, the removal of which
will be reflected in the next quarterly update.
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
5. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552(a); 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,
15557, 3 CFR 1982 Comp. p. 166; 8 CFR part 2.
Sec. 103.1 [Amended]
6. Section 103.1 is amended by removing and reserving paragraph
(f)(3)(iii)(U).
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
7. The authority citation for part 212 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1187, 1225,
1226, 1227, 1228, 1252; 8 CFR part 2.
Sec. 212.6 [Amended]
8. In Sec. 212.6, paragraph (d)(1) is amended in the third sentence
by removing the word ``programs'' and adding ``provided by
organizations and attorneys'' in its place and by revising the
reference to ``part 292a of this chapter'' to read ``part 3 of this
chapter''.
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
9. The authority citation for part 235 continues to read as
follows;
Authority: 8 U.S.C. 1101, 1103, 1182, 1183, 1201, 1224, 1225,
1226, 1227, 1228, 1252.
Sec. 235.6 [Amended]
10. In Sec. 235.6, paragraph (a) is amended in the fourth sentence
by removing the word ``programs'' and adding ``provided by
organizations and attorneys'' in its place and by revising the
reference to ``part 292a of this chapter'' to read ``part 3 of this
chapter''.
PART 236--EXCLUSION OF ALIENS
11. The authority citation for part 236 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1362.
Sec. 236.2 [Amended]
12. In Sec. 236.2, paragraph (a) is amended in the third sentence
by removing the word ``programs'' and adding ``provided by
organizations and attorneys'' in its place and by revising the
reference to ``part 292a of this chapter'' to read ``part 3 of this
chapter''.
PART 242--PROCEEDINGS TO DETERMINE DEPORTABILITY OF ALIENS IN THE
UNITED STATES: APPREHENSION, CUSTODY, HEARING, AND APPEAL
13. The authority citation for part 242 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1186a, 1251, 1252, 1252 note,
1252a, 1252b, 1254, 1362; 8 CFR part 2.
Sec. 242.1 [Amended]
14. In Sec. 242.1, paragraph (c) is amended in the fourth sentence
by removing the word ``programs'' and adding ``provided by
organizations and attorneys'' in its place and by revising the
reference to ``part 292a of this chapter'' to read ``part 3 of this
chapter''.
Sec. 242.2 [Amended]
15. In Sec. 242.2, paragraph (c)(2) is amended in the third
sentence by removing the word ``programs'' and adding ``provided by
organizations and attorneys'' in its place and by revising the
reference to ``part 292a of this chapter'' to read ``part 3 of this
chapter''.
16. In Sec. 242.2, paragraph (d) is amended in the fourth sentence
by removing the word ``programs'' and adding ``provided by
organizations and attorneys'' in its place and by revising the
reference to ``part 292a of this chapter'' to read ``part 3 of this
chapter''.
Sec. 242.16 [Amended]
17. In Sec. 242.16, paragraph (a) is amended in the first sentence
by removing the word ``programs'' and adding ``providing by
organizations and attorneys'' in its place and by revising the
reference to ``part 292a of this chapter'' to read ``part 3 of this
chapter''.
Sec. 242.24 [Amended]
18. In Sec. 242.24, paragraph (g) is amended in the first and
second sentences by revising the phrase ``found on the free legal
services list'' to read ``or attorney found on the list of free legal
services providers maintained in accordance with part 3 of this
chapter''.
PART 287--FIELD OFFICERS; POWERS AND DUTIES
19. The authority citation for part 287 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1225, 1226, 1251, 1252, 1357; 8
CFR part 2.
Sec. 287.3 [Amended]
20. In Sec. 287.3, the sixth sentence is amended by removing the
word ``programs'' and adding ``provided by organizations and
attorneys'' in its place and by revising the reference to ``part 292a
of this chapter'' to read ``part 3 of this chapter''.
[[Page 9075]]
PART 292--REPRESENTATION AND APPEARANCES
21. The authority citation for part 292 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1252b, 1362.
22. Section 292.22 is amended by revising the first sentence in
paragraph (a) introductory text to read as follows:
Sec. 292.2 Organizations qualified for recognition; requests for
recognition; withdrawal of recognition; accreditation of
representatives; roster.
(a) Qualifications of organizations. A non-profit religious,
charitable, social service, or similar organization established in the
United States and recognized as such by the Board may designate a
representative or representatives to practice before the Service alone
or the Service and the Board (including practice before the Immigration
Court). * * *
* * * * *
PART 292a--[REMOVED]
23. Part 292a is removed.
Dated: February 24, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-5039 Filed 2-27-97; 8:45 am]
BILLING CODE 4410-30-M
