2021-26853. Executive Office for Immigration Review Electronic Case Access and Filing

AGENCY:

Executive Office for Immigration Review, Department of Justice.

ACTION:

Final rule.

SUMMARY:

On December 4, 2020, the Executive Office for Immigration Review (“EOIR”) published a notice of proposed rulemaking (“NPRM” or “proposed rule”), proposing to amend EOIR's regulations in order to implement electronic filing and records applications for all cases before the immigration courts and the Board of Immigration Appeals (“BIA”). The NPRM also proposed amendments to the regulations regarding law student filing and accompaniment procedures. This final rule responds to comments received in response to the NPRM and adopts the NPRM with changes as described below.

DATES:

This rule is effective on February 11, 2022.

FOR FURTHER INFORMATION CONTACT:

Lauren Alder Reid, Assistant Director, Office of Policy, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, VA 22041, telephone [phone] (not a toll-free call).

SUPPLEMENTARY INFORMATION:

I. Notice of Proposed Rulemaking

On December 4, 2020, EOIR published an NPRM in the Federal Register , proposing to amend EOIR's regulations in order to implement electronic filing and records applications, known as EOIR's Courts & Appeals System (“ECAS”), for all cases before the immigration courts and the BIA, as well as to update law student filing and accompaniment procedures. See Executive Office for Immigration Review Electronic Case Access and Filing, 85 FR 78240 (Dec. 4, 2020).

The NPRM proposed revisions to 8 CFR parts 1001, 1003, 1208, 1240, 1245, 1246, and 1292. These revisions included: (1) Adding or updating relevant definitions; (2) mandating electronic filing, subject to certain exceptions, for the Department of Homeland Security (“DHS”), attorneys, and accredited representatives, as well as providing for future voluntary use by pro se respondents, applicants, and petitioners; reputable individuals; and accredited officials; (3) providing standards for electronic filing relating to signatures, service of process, system outages, and the filing of classified information; (4) updating fee language to account for electronic payments; (5) removing the in-duplicate filing requirement for electronic filings; (6) revising the procedures for law student and law graduate filing and accompaniment; and (7) making various technical amendments to update outdated references and to conform with EOIR's style guidelines.

The comment period for the NPRM opened on December 4, 2020, and closed on January 4, 2021, with six organizational comments received. The Department summarizes and responds to the public comments below, followed by a description of changes made to the NPRM in this final rule.

II. Public Comments on the Proposed Rule and Responses

The Department received six organizational comments on the NPRM, which are organized by topic below.

A. Law Student or Law Graduate Accompaniment

Comment: One commenter requested that EOIR modify the proposed rule to clarify that supervising attorneys should not be required to be physically present in the same location as the law student or law graduate during a telephonic or video teleconference (VTC) hearing.

Response: After consideration, the Department has determined that the regulations should not specify that the law student or law graduate and the supervising attorney or accredited representative must all be physically present in the same location for each hearing. Instead, the Department has decided to remove the physical presence requirement and leave the determination regarding the parties' manner of appearance to the adjudicator's discretion, as is the case with all other types of representatives. For example, subject to the adjudicator's discretion, the supervising attorney or accredited representative may attend the hearing from a separate location, so long as the supervising attorney or accredited representative is able to proceed with the hearing if necessary. The change is described in more detail in Section III below.

B. System Outages

Comment: One commenter stated that the rule's planned outage standards should match the unplanned outage standards, which automatically moves the filing deadline in the case of an EOIR-recognized unplanned outage. The commenter was concerned about situations in which planned outages are not announced with sufficient notice or where a planned outage is not adequately publicized.

Response: The Department considered the commenter's suggestion and has decided to leave the planned outage process unchanged but will extend the minimum notice of planned outages from three to five days to ensure sufficient notice. The Department believes that this updated planned outage standard provides users with sufficient notice to ensure that filers will be able to complete any filings as necessary.

The rule states that, for any planned outage, EOIR will issue public communications regarding the planned outage. See 8 CFR 1003.2(g)(5), 1003.3(g)(2), 1003.31(b). These communications may include email notifications via EOIR's GovDelivery service and postings on EOIR's website, consistent with the standard practice of other court systems. See, e.g., U.S. Ct. of App. for the Fed. Cir., CM/ECF Scheduled Maintenance Outages, available at http://www.cafc.uscourts.gov/​cmecf-scheduled-maintenance-outages (last visited Feb. 26, 2021).

In addition, any planned outages announced with five or fewer business days prior to the outage will be treated as an unplanned outage and filing deadlines will be adjusted accordingly. See 8 CFR 1003.2(g)(5), 1003.3(g)(2), 1003.31(b). Therefore, for any properly noticed planned outage, filers will have at least six business days' notice, which the Department believes is sufficient to allow filers to plan their filings accordingly to meet all applicable filing deadlines.

C. Proof of Fee Payments

Comment: One commenter requested that EOIR clarify that proof of fee payments is sufficient when filing fee receipts, as the commenter stated that DHS is often delayed in providing a fee receipt in a timely manner.

Response: After consideration, the Department has updated the rule to account for situations in which a fee receipt has not been provided to the filer by the deadline set by the immigration court. The specific changes are described in further detail in Section III of this preamble.

D. Email Filings

Comment: One commenter requested clarity on the interaction between EOIR's implementation of electronic filing through this rule and EOIR's use of email filing due to the COVID-19 pandemic. The commenter asked whether the email inboxes would remain after the launch of electronic filing in an immigration court and questioned whether they should remain for pro se respondents.

Response: EOIR created temporary email inboxes to allow for basic electronic filing due to the COVID-19 pandemic. See EOIR, Filing by Email—Immigration Courts, available at https://www.justice.gov/​eoir-operational-status/​filing-email-immigration-courts (last updated September 7, 2021). As explained on the website, the email inboxes were intended for use only by non-ECAS users. See id. (“If you have opted-in to ECAS, do not use email in lieu of filing through ECAS.”). The email inboxes were intended to support the public and did not create efficiencies for EOIR, as they required court staff to print all filings for paper cases and to manually upload any filings for cases with electronic records of proceedings (“eROPs”). These email inboxes are now discontinued and were not intended to be long-term solutions for electronic filing at EOIR. Id. (“Filing by Email Expiration Date”).

Instead, EOIR continues to pursue full implementation of ECAS, a full-fledged electronic filing and records system, which provides filers with a secure portal to electronically view and file documents in eligible cases and sends automatic service notifications from EOIR.

Regarding pro se respondents, EOIR is focused on determining how to securely register them for ECAS, which will then enable willing pro se respondents to use ECAS for electronic filing.

E. Pro Se Access and Registration

Comment: One commenter requested additional information on EOIR's planned steps for providing pro se access to electronic filing. The commenter noted that the electronic filing system should ensure language accessibility for pro se respondents and that any electronic filing should be free of charge. Another commenter provided suggestions on registering pro se users for electronic filing, including using an identity verification system such as www.login.gov,, or providing an in-person registration code.

Response: This rule creates a framework for allowing pro se respondents to use ECAS, including a registration requirement and standards for opting in and out of voluntary electronic filing. See 8 CFR 1003.2(g)(4), 1003.3(g)(1), 1003.31(a). The Department continues to review options for registering pro se respondents for electronic filing and appreciates commenters' suggestions. Once EOIR determines how best to register pro se respondents, EOIR will provide further guidance as necessary.

Regarding accessibility, EOIR intends to fully comply with the requirements of Executive Order 13166 to provide meaningful access to the immigration courts to limited English proficiency (“LEP”) persons. See Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, 65 FR 50121 (Aug. 16, 2000). To date, EOIR has released a language access plan detailing the agency's efforts to comply with Executive Order 13166. See EOIR, The Executive Office for Immigration Review's Plan for Ensuring Limited English Proficient Persons Have Meaningful Access to EOIR Services, May 31, 2012, available at https://www.justice.gov/​sites/​default/​files/​eoir/​legacy/​2012/​05/​31/​EOIRLanguageAccessPlan.pdf. When EOIR implements ECAS for pro se respondents, who are the main EOIR population constituting LEP persons, EOIR will determine if Executive Order 13166 requires any additional changes to its public-facing systems to ensure meaningful access.

Lastly, the rule does not impose any standalone fees for electronic filing.

F. Representative Registration Process

Comment: One commenter requested that EOIR include changes to its eRegistry process by removing the in-person identity verification step.

Response: The Department believes that the request to remove in-person verification from the eRegistry process is outside the scope of this rule, as the rule does not make any changes to the eRegistry process. See 85 FR at 78244 (explaining that this rule does not add any additional eRegistry requirements).

G. Change of Address

Comment: One commenter requested that EOIR develop a centralized system for filing the change of address form, Form EOIR-33, in order to provide a simple and reliable process for pro se respondents and representatives.

Response: To the extent that the commenter requests a separate centralized system to submit Form EOIR-33, the Department believes such request is outside the scope of this regulation. Nevertheless, the Department notes that Form EOIR-33 is currently available for electronic filing through ECAS. In addition, as EOIR continues to pursue enhancements to its ECAS system, the agency will consider potential changes to its change of address filing and processing procedures to ensure a simple and efficient process for filers.

H. Service of Process

Comment: One commenter raised concerns about electronic service of process, noting that representatives could miss an email that ends up in a spam folder or is not received due to a technical issue. The commenter was also concerned about electronic service on pro se respondents and respondents who receive only limited representation. As a result, the commenter stated that DHS should be required to paper serve pro se respondents or their representatives in addition to any electronic service of process.

Response: The Department has no concerns regarding electronic service, which is standard practice in most court systems. See, e.g., Ninth Cir. Ct. of App. Fed. R. App. P. 25.5(f)(1) (stating that, subject to some exceptions, “[w]hen a document . . . is submitted electronically, the Appellate Electronic Filing System will automatically notify the other parties and counsel who are registered for electronic filing of the submission; no certificate of service or service of paper copies upon other parties and counsel registered for electronic filing is necessary.”). In addition, EOIR has been successfully piloting ECAS since June 2018, including by sending email notifications to filers. In general, representatives should vigilantly monitor their email inboxes, including any spam folders, for service notifications from EOIR, just as a person would for any important email communication.

Regarding cases involving pro se respondents who choose not to use ECAS, the rule requires DHS to complete service outside of the ECAS system consistent with current practice. See, e.g., 8 CFR 1003.32(c). The Department also notes that EOIR currently does not allow for limited representation aside from bond hearings. If a respondent retains a representative for a proceeding before EOIR, that representative will be required under this rule to electronically file and receive electronic service so long as they have a valid Form EOIR-27 or EOIR-28 on file, as applicable. If the immigration court or BIA later grants the representative's withdrawal from the proceeding, the respondent becomes pro se, and the electronic filing and service procedures no longer apply.

Lastly, in response to the suggestion that DHS be required to complete paper service in all cases in addition to any electronic service, the Department declines to create additional service requirements for DHS that would not be similarly required of the opposing party. The Department is confident in the electronic service process, and requiring duplicative paper service would only reduce the efficiencies of the electronic filing and service process.

I. Electronic Filing for Existing Paper Cases

Comment: One commenter requested that EOIR allow for electronic filing in existing paper cases to increase usage among willing representatives.

Response: The Department appreciates the commenter's suggestion and enthusiasm for electronic filing. However, EOIR is unable to provide electronic filing in existing paper cases at this time due to resource constraints surrounding the digitization of existing case files. In the future, EOIR may consider converting paper records to eROPs, depending on cost, technological feasibility, and agency operational requirements. In addition, the Department believes that applying this rule prospectively to newly initiated cases will also help ensure a smooth transition into electronic filing and eROPs.

J. Signature Requirements

Comment: One commenter requested clarity regarding ink signatures on forms that require ink signatures and how those should be handled through electronic filing. Another commenter requested that EOIR allow for digital signatures on paper filings.

Response: As stated in the NPRM, the rule's signature requirements are subject to any form requirements regarding signatures. See 85 FR at 78246. Therefore, if a form requires an ink signature, the user must follow the form requirements. The user may then electronically file a scanned copy of the ink-signed form through ECAS, so long as the user maintains the original document for inspection upon request. Id. (“In practice, if the user was electronically filing, the user would sign the application in ink and then scan and electronically file the application with EOIR.”).

Second, the rule already also allows for the use of electronic and encrypted digital signatures on documents filed in paper. See 85 FR at 78246 (“First, EOIR proposes to accept documents with original, handwritten ink signatures, encrypted digital signatures, or electronic signatures, whether filing electronically or on paper.”).

K. Transition Period

Comment: One commenter stated that EOIR should implement a transition period before making electronic filing mandatory for attorneys and accredited representatives in order for representatives to ensure they have the necessary staffing, training, and file storage.

Response: After consideration, the Department declines to implement an explicit transition period for attorneys and accredited representatives. The Department believes that electronic filing is standard practice in most court systems and that most, if not all, users should already be familiar with uploading documents electronically. EOIR has devoted resources to developing the EOIR Case Portal, an updated electronic filing portal that features an intuitive user interface for electronically filing documents at the immigration courts and the BIA and will be providing training materials and technical support to filers as necessary. For example, users can currently view training materials, including infographics and videos on how to upload and download documents, on EOIR's website. See EOIR, Resources—Attorneys and Accredited Representatives, available at https://www.justice.gov/​eoir/​ecas/​attorney-and-ar-resources (last updated Aug. 25, 2021). This rule also includes a 60-day waiting period before it becomes effective, which provides additional time for filers to familiarize themselves with ECAS. Moreover, ECAS has been in production at many pilot courts for more than two years without issue, evincing a stable electronic filing system. See EOIR Electronic Filing Pilot Program, 83 FR 29575 (June 25, 2018).

In addition, this rule only applies to cases initiated after the ECAS release in a specific court or the BIA. See 8 CFR 1001.1(cc) (defining “case eligible for electronic filing”). Therefore, attorneys and accredited representatives will only be required to electronically file documents in newly initiated cases, which will act as a de facto transition period.

L. Interaction with Other EOIR Proposed Rules

Comment: One commenter raised concerns about the rule's interaction with the September 30, 2020 NPRM entitled, “Professional Conduct for Practitioners—Rules and Procedures, and Representation and Appearances,” 85 FR 61640 (Sept. 30, 2020) (“September NPRM”). The commenter requested clarification on the interaction between electronic filing under this rule and the September NPRM and recommended that the comment period be reopened to allow commenters additional time to explore potential interactions between the two rules.

Response: The Department finds it unnecessary to extend the comment period as requested because this rule and the September NPRM address two different, though admittedly related, topics. In the September NPRM, the Department proposed a new manner of appearance before the immigration courts and the BIA: Document assistance that would not trigger the full range of responsibilities and obligations required for full representation. See 85 FR at 61645. This rule establishes electronic filing requirements for attorneys and accredited representatives who have filed a Form EOIR-27 or EOIR-28 and are the representative of record, and creates a system that allows for voluntary and permissible electronic filing in the future by the respondent, applicant, or petitioner; reputable individuals and accredited officials; and any other authorized individuals. As discussed below in Section III, this final rule provides further clarification regarding when the electronic filing requirements apply so that it is clear that only attorneys or representatives who are the representative of record have a mandatory filing requirement. As the Department works to finalize the September NPRM, the Department will include any further clarity or provisions as needed in that final rule.

In addition, the Department notes that, as a general matter under the current system requirements, only representatives with a valid EOIR-27 or EOIR-28 entry of appearance on file for a specific case may view and file documents electronically for that case through ECAS.

M. Electronic Filing System

Comment: One commenter stated that EOIR should study other courts' electronic filing systems to serve as a model, including CM/ECF and those of other agencies and state courts.

Response: EOIR considered many existing court electronic filing systems in designing ECAS and will continue to solicit feedback from users in an effort to continually improve the system. See EOIR, Contact—Attorneys and Accredited Representatives, available at https://www.justice.gov/​eoir/​ecas/​attorney-and-ar-contact (last updated Jan. 25, 2021) (providing an email inbox to submit ECAS-related suggestions).

N. Comment Period

Comment: Commenters raised concerns with the rule's 30-day comment period, stating that the comment period was too short in light of the holiday season, the COVID-19 pandemic, and EOIR's other pending proposed rules. Commenters requested that EOIR reopen the comment period for further comment.

Response: The Department believes the 30-day comment period on the NPRM was sufficient to allow for meaningful public input. See, e.g., Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2385 (2020) (“The object [of notice and comment], in short, is one of fair notice.” (citation omitted; alteration in the original)).

The Administrative Procedure Act (“APA”) does not require a specific comment period length. See generally 5 U.S.C. 553(b)-(c). Although Executive Orders 12866 and 13563 recommend a comment period of at least 60 days, no specific length is required by executive order or statute. See Vt. Yank. Nucl. Power Corp. v. NRDC, 435 U.S. 519, 524 (1978) (explaining that, aside from “extremely rare” circumstances, the APA “established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures”).

Federal courts have found 30 days to be a reasonable comment period length. For example, the D.C. Circuit has stated that “[w]hen substantial rule changes are proposed, a 30-day comment period is generally the shortest time period sufficient for interested persons to meaningfully review a proposed rule and provide informed comment.” Nat'l Lifeline Ass'n v. FCC, 921 F.3d 1102, 1117 (D.C. Cir. 2019) (citing Petry v. Block, 737 F.2d 1193, 1201 (D.C. Cir. 1984)). Further, litigation has mainly focused on the reasonableness of comment periods shorter than 30 days, often in the face of exigent circumstances. See, e.g., North Carolina Growers' Ass'n. v. United Farm Workers, 702 F.3d 755, 770 (4th Cir. 2012) (analyzing the sufficiency of a 10-day comment period); Omnipoint Corp. v. FCC, 78 F.3d 620, 629-30 (D.C. Cir. 1996) (15-day comment period); Northwest Airlines, Inc. v. Goldschmidt, 645 F.2d 1309, 1321 (8th Cir. 1981) (7-day comment period).

Here, the Department decided that this rule, which codifies straightforward standards for electronic filing, was not overly complex or so “substantial” such that it necessitated a lengthy comment period. Nat'l Lifeline Ass'n, 921 F.3d at 1117. The NPRM did not present a novel concept with which commenters would have been entirely unfamiliar. In the last three years, the Department has published a notice in the Federal Register announcing pilot programs for electronic filing, 83 FR 29575; begun more than 40 pilot programs at immigration court locations across the country; and developed a robust website and portal, including technical support contacts, infographics, video tutorials, and user manuals. See generally EOIR, EOIR Courts & Appeals System (ECAS)—Online Filing, available at https://www.justice.gov/​eoir/​ECAS (last updated July 11, 2021). For these reasons, the Department finds it unnecessary to extend the comment period beyond the 30 days provided.

Moreover, the Department does not believe that the COVID-19 pandemic, the holiday season, or EOIR's other proposed rulemakings should have precluded the use of a 30-day comment period. Regarding the COVID-19 pandemic, proposed rulemakings allow for electronic comment submissions, and employers around the country have adopted telework flexibilities to the greatest extent possible, which reduces potential hardships from the COVID-19 pandemic. In addition, holidays within a comment period are unavoidable throughout much of the year, and commenters are expected to plan accordingly. Lastly, this rule is unrelated to any other proposed rules that EOIR issued during the same time period, and the Department does not believe that unrelated NPRMs provide cause for extending comment periods.

III. Final Rule

After reviewing public comments on the NPRM, the Department now adopts the NPRM as written with the following changes: (1) Removing the regulatory requirement that supervising attorneys or accredited representatives be physically present in the same location as the law students or law graduates they supervise for purposes of representation before EOIR, and instead leaving the determination regarding the parties' manner of appearance to the adjudicator's discretion; (2) correcting a scrivener's error regarding the supervisor requirements for law graduates; (3) allowing filers to include proof of fee payment with DHS when DHS has not provided a fee receipt within the filing deadline set by the immigration judge; (4) including language requiring sealed medical records to be filed in paper and not electronically; (5) broadening immigration judge discretion to accept paper filings from parties otherwise required to file electronically under this rule; (6) modifying the process for fee waiver denials at the BIA; (7) extending the minimum notice requirement for planned outages from three to five days; (8) removing duplicative examples of improper filings; (9) clarifying to whom the filing requirements apply; (10) clarifying the registration procedures for permissive electronic filers; and (11) making additional minor technical amendments to update outdated references.

First, the final rule modifies 8 CFR 1292.1(a)(2)(iv) so that supervising attorneys or accredited representatives are not required by regulation to be physically present in the same location as the law students or law graduates they supervise for purposes of representation before the immigration court or the BIA, and instead leaves the determination regarding the parties' manner of appearance ( e.g., video teleconference; in-person) subject to the adjudicator's discretion. This clarification enhances flexibility for supervising attorneys or accredited representatives of law students or law graduates while maintaining the requirement that the supervising attorney or accredited representative be able to participate fully and be prepared to proceed with the case, including in-person appearance when required. See 8 CFR 1003.10(b).

Second, the final rule amends 8 CFR 1292.1(a)(2)(iii) to correct a scrivener's error that excluded the requirement that law graduates appear under the supervision of an EOIR-registered licensed attorney or accredited representative. While the Department included this requirement in the NPRM at 8 CFR 1292.1(a)(2)(ii) as applied to law students appearing before EOIR, and indicated its clear intent that law students and law graduates be subject to the same supervision requirements through the paragraph regarding filings by law students and law graduates, it inadvertently excluded the supervisors' registration requirement in the paragraph regarding law graduates. Because the supervisors of both law students and law graduates must be able to proceed with the case at all times, 8 CFR 1292.1(a)(2)(iv), it is logical that the supervisors in both circumstances must be EOIR-registered. Indeed, the Department indicated its intent in the NPRM that law graduates' supervisors be registered in the same manner as law students' supervisors. See 85 FR at 78243 (“Further, this rulemaking proposes that law graduates, currently required to have `supervision' under the regulations, 8 CFR 1292.1(a)(2)(iii), would also need to file through an attorney or accredited representative registered with EOIR.”)

Third, the final rule modifies 8 CFR 1001.1(dd)(2), 1003.23(b)(1)(ii), 1003.31(g), and 1103.7(a)(3) to allow filers to submit proof of fee payment made to DHS in the event that filers are not provided a fee receipt within the applicable filing deadline set by the immigration judge. This change will provide flexibility when filers cannot meet EOIR filing deadlines through no fault of their own. However, the rule makes clear that the filer must still submit the actual fee receipt within a later deadline set by the immigration judge or, if no deadline is set, within 45 days of the submission of the underlying filing.

Fourth, the final rule modifies 8 CFR 1003.2(g)(7), 1003.3(g)(4), and 1003.31(e) to add an additional requirement that sealed medical records must be filed in paper and not electronically. Most commonly, respondents are required to submit a sealed Form I-693 when applying for adjustment of status. See 8 CFR 1245.5; U.S. Citizenship and Immigration Services, Form I-693—Instructions for Report of Medical Examination and Vaccination Record, available at https://www.uscis.gov/​sites/​default/​files/​document/​forms/​i-693instr.pdf (explaining that the completed form will be returned if not sealed when submitted). Since documents in sealed envelopes cannot be electronically transmitted, respondents in these cases must submit the sealed Form I-693 medical report in paper to ensure the integrity of the record, which the immigration judge will open and scan into the electronic record of proceeding. This modification will provide clarification to ensure that the confidentiality of these medical records is maintained and that the medical records are not erroneously opened by the parties and filed electronically.

Fifth, the final rule modifies 8 CFR 1003.31(b) to broaden the ability of immigration judges to accept paper filings in all cases. The NPRM provided the BIA full discretion to accept paper filings as necessary but limited immigration judges to situations involving (1) rebuttal or impeachment; (2) good cause shown, provided that the filing is otherwise admissible and the immigration judge finds that any applicable filing deadline should be excused; or (3) when the opposing party does not object to the paper filing. By updating this language in the final rule, the Department recognizes that providing immigration judges with maximum discretion to accept paper filings will help provide the necessary flexibility to receive evidence as the immigration judge deems necessary and will provide consistency between the immigration courts and the BIA.

Sixth, the final rule modifes 8 CFR 1001.1(dd), 1003.8(a)(3), and 1003.24(d) to update the fee waiver denial process at the BIA. The NPRM changed the existing BIA fee waiver process so that, if the BIA denied a fee waiver request, the BIA would hold the underlying filing in a pending state while allowing the filer a 10-day cure period to submit the required fee or to submit a new fee waiver request, which would also serve to toll any applicable filing deadlines. However, after further review, the Department has decided to modify this language to more closely match the existing process, while retaining the filing deadline tolling period. The final rule states that, if a fee waiver request is denied, the BIA will reject the filing consistent with existing practice but allow the filer 15 days to re-file the document with the proper payment or a new fee waiver request. Any applicable filing deadlines will be tolled during this 15-day period. The Department believes this modification provides a more standardized process for filings at the BIA and will prevent any issues stemming from the BIA needing to hold any filings in a pending state while waiting for a fee payment or new fee waiver.

Seventh, the final rule modifies 8 CFR 1003.2(g)(5), 1003.3(g)(2), and 1003.31(b) to extend the minimum notice for planned system outages from three to five days. As a result, any planned outages announced with five or fewer days' notice will be treated as an unplanned outage and filing deadlines will be extended until the first day of system availability that is not a Saturday, Sunday, or legal holiday. For planned outages with more than five days' notice, filers must electronically file documents during system availability within the applicable filing deadline or paper file documents within the applicable filing deadline. Extending the notice period will further ensure that filers have sufficient time to account for planned outages when filing their documents.

Eighth, the final rule removes proposed 8 CFR 1001.1(dd)(2), which provided a non-exhaustive list of improper filings subject to rejection by the immigration courts and the BIA. The requirements for proper filings are contained within various statutory and regulatory provisions. See, e.g., INA 240(c)(4)(B), 8 U.S.C. 1229a(c)(4)(B) (requiring compliance with application instructions); 8 CFR 1003.31 (fee requirements), 1003.32 (proof of service and document formatting requirements), 1003.33 (document translation requirements). The proposed language in the NPRM was non-exhaustive and risked duplication and confusion with these and other similar provisions. Therefore, the Department has removed the language from the final rule.

Ninth, this rule amends the provisions at 8 CFR 1003.2(g)(4), 1003.3(g)(1), and 1003.31(a) regarding parties that are either required to or allowed to electronically file documents with EOIR. Specifically, this rule adds a qualifier that the mandatory electronic filing requirement for attorneys and accredited representatives applies only in those cases in which the attorney or accredited representative has entered an appearance on a Form EOIR-27 or a Form EOIR-28. This rule also amends the explanation of who may permissively file documents electronically so that it is clear that reputable individuals and accredited officials may also do so in those cases in which they have entered an appearance on a Form EOIR-27 or a Form EOIR-28. Finally, this rule includes a catchall that “other authorized individuals” may file documents electronically. For example, depending on sytem development, EOIR may authorize third-party electronic filing akin to the current availability of courier services.

Tenth, the final rule modifies 8 CFR 1003.2(g)(4), 1003.3(g)(1), and 1003.31(a) regarding the requirement for parties who may permsissibly and voluntarily participate in electronic filing with the immigration courts and the BIA. Previously, the proposed rule stated that such parties must first register with EOIR “in conformity with 8 CFR 1292.1(f).” That paragraph, however, only sets out registration procedures for attorneys and accredited representatives who appear before EOIR. Accordingly, the final rule replaces these references to 8 CFR 1292.1(f) with a general requirement that unrepresented respondents, reputable individuals, accredited officials, and any other authorized persons must first register with EOIR as a prerequisite to being able to electronically file documents with the immigration courts and the BIA. This amendment does not change the Department's expectation, as explained in the NPRM, that the registration procedures for these officials, once available, will mimic those that are set out in 8 CFR 1292.1(f) and that currently apply to attorneys and accredited representative. 85 FR at 78242 (“EOIR will adapt its current registration system as appropriate to allow pro se respondents, applicants, or petitioners and reputable individuals and accredited officials to register in order to be able to utilize ECAS.”).

Lastly, the final rule includes two additional technical amendments to correct additional outdated references to the Immigration and Naturalization Service in 8 CFR 1214.2 and 1245.21.

IV. Regulatory Requirements

A. Regulatory Flexibility Act

The Department has reviewed this rule in accordance with the Regulatory Flexibility Act and has determined that this rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b). This rule regulates attorneys and accredited representatives, most of whom qualify as “small entities” under the Regulatory Flexibility Act. See 5 U.S.C. 601(3)-(4), (6). However, all attorneys and accredited representatives already are required to enroll in eRegistry in order to practice before EOIR. Thus, they are already eligible to participate in the electronic filing system, which is currently being made available in many locations through a voluntary pilot program. This rule mandates electronic filing in eligible cases. The Department anticipates that the adoption of electronic filing will lead to substantial net cost savings for these attorneys and accredited representatives because they will no longer be required to bear the burdens and expenses of mailing or serving paper copies in each of their cases for filings submitted to the immigration court or to the BIA or for service of process on opposing counsel. Therefore, this rule will not have an adverse economic effect on attorneys or accredited representatives; instead the Department expects it to result in net cost savings. A more detailed analysis of the costs and benefits of this rule are detailed in Section IV.D of this preamble.

B. Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

C. Congressional Review Act

This rule is not a major rule as defined by section 804 of the Congressional Review Act. 5 U.S.C. 804(2). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. The Department will report to Congress and to the Comptroller General as required by 5 U.S.C. 801(a).

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

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). The Office of Information and Regulatory Affairs of the Office of Management and Budget (“OMB”) has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866. It will neither result in an annual effect on the economy greater than $100 million nor adversely affect the economy or sectors of the economy. It does not pertain to entitlements, grants, user fees, or loan programs, nor does it raise novel legal or policy issues. It does not create inconsistencies or interfere with actions taken by other agencies. Accordingly, this rule is not a significant regulatory action subject to review by OMB pursuant to Executive Order 12866.

Executive Order 13563 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of using the best available methods to quantify costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 13563.

1. ECAS-Related Costs and Savings

The Department estimates that implementation of ECAS will result in a total savings of $68,103,621 over the first 10 years of its implementation.^[1] Specifically, the Department estimates that electronic filing will cost EOIR $32,897,808 over 10 years, primarily due to increased technology costs to implement and maintain the new technology infrastructure. These costs are outweighed, however, by the predicted savings to the public—$101,001,429, which primarily relate to cost savings from no longer having to file documents via mail or in person. These costs and savings for EOIR and the public are discussed in further detail individually below.

Table 1—Overview of Total Cost and Savings: EOIR and the Public ²

Entity	Savings/costs
EOIR	($32,897,808)
OCIJ	12,910,888
BIA	2,710,950
OIT	(51,275,937)
OGC	2,757,920
Public	101,001,429
Total	68,103,621

Despite the financial cost to EOIR to develop and maintain the technology for ECAS, the Department believes that electronic filings will be a net benefit for the agency. During the electronic filing pilot program, EOIR has already begun to realize efficiencies in case processing. For example, in Fiscal Year (“FY”) 2019 DHS initiated 37,074 cases electronically (out of 465,790 cases initiated in the same time period), and 161 bond proceedings were initiated electronically. According to internal pilot metrics, charging documents filed electronically at the pilot sites are being processed nearly 10 times faster than charging documents filed in paper. Similarly, the time it takes to receive and process a non-charging supporting document is approximately 25 percent faster than processing a paper-filed supporting document. This represents a significant savings in terms of court staff time and in terms of the overall processing time for the 2,574 electronically filed motions that EOIR has received during the ECAS pilot program from its inception to the end of January 2020. This rule will only increase these time savings when all attorneys and accredited representatives begin filing documents electronically.

a. Office of the Chief Immigration Judge

The Department estimates that implementation of the rule will reduce the immigration courts' costs by the equivalent of approximately $12.9 million over the first 10 years of implementation. This reduction includes the cost of labor that will be reallocated to other tasks due to the more efficient processing of electronic documents. Cost changes for the courts will be realized primarily in initial case processing; individual hearing processing; and processing and shipping costs for changes of venue, appeals, and records retirement.

To reach its estimates, the Department determined the costs for adjudicating a typical case after the implementation of the rule. Using this methodology, the Department identified and analyzed three separate scenarios: (1) Legacy paper ROPs that were started but not completed before this rule; (2) eROPs for pro se respondents that are submitted in paper and scanned by court staff; and (3) eROPs for represented respondents that are completely electronic.

The Department then estimated the economic impact of the rule on the immigration courts for each of the next 10 years by calculating the average costs for each of the three scenarios above; multiplying each scenario's average cost by the expected annual number of cases received for the immigration courts and expected annual hearings for the immigration courts in each scenario over the next decade; separately calculating the baseline cost ( i.e., the cost without mandatory electronic filing), using existing time estimates and labor rates, for the next 10 years; and subtracting the post-regulation cost from the baseline cost for each of the next 10 years.

This economic impact reflects labor hours that will be saved in terms of dollars. In actuality, labor can be reallocated to higher-impact tasks, and more efficient labor usage could offset future hiring and resource needs, which may lead to more quantifiable realized savings. As shown in Table 2, the expected cost savings increase every year. This is a result of legacy paper ROPs leaving the system as cases are adjudicated and a higher percentage of the future pending cases having mandatory eROPs as a result of this regulation.

Table 2—Office of the Chief Immigration Judge Cost Savings

Year	Expected cost savings
1	$140,304
2	526,622
3	816,841
4	1,115,708
5	1,320,399
6	1,500,104
7	1,666,355
8	1,816,269
9	1,947,925
10	2,060,361
Total	12,910,888

Since all paper-filed documents, per this new regulation, will be scanned and maintained in an eROP, initial case processing is estimated to become marginally more expensive as court staff must scan the paper documents into the eROP. However, this increase in cost will be outweighed by the time savings, calculated in terms of the cost of labor, for individual hearing processing and change of venue processing, as filing becomes more expeditious for court staff in each individual case. Additionally, annual shipping costs will be reduced, since changes of venue, appeals, and records retirement transfers will occur electronically instead of manually shipping the paper ROP to another court, the BIA, or the Federal Records Center.

Cost changes have been calculated with the assumption that all other processes remain the same. However, eROPs enable the possibility of further cost savings through more efficient case adjudication. For example, widely available eROPs may enable immigration judges to hear a case via video teleconference (“VTC”) almost instantly. Under the current paper ROP system, the ROP needs to be shipped to the immigration judge's location before a VTC hearing can be held. In contrast, an eROP could enable a judge to open any eROP and hear a case immediately. This new paradigm has the potential to improve the efficiency of workload adjudication by judges and their staff members.

EOIR may also realize savings through the reduced growth of storage requirements at court locations. EOIR currently stores paper ROPs at immigration courts, utilizing valuable storage space in courtrooms, offices, and hallways. Conversion to an eROP system may ease the strain on the system as new pending cases will have an eROP that will not require physical storage space. With the information currently available, storage space utilization and savings cannot be specifically calculated. However, this regulation will likely reduce costs for the immigration courts by allowing current space to be used for functional purposes, rather than storage.

b. Board of Immigration Appeals

The Department also estimates that implementation of the rule will reduce the BIA's costs by approximately $2.7 million over the first 10 years of implementation. Cost changes for the BIA will be realized in three main process areas: Scanning pro se ROPs; receiving ROPs from the immigration courts; and returning ROPs to the immigration courts.

Table 3—BIA Costs Savings

Year	Expected cost savings
1	($23,064)
2	176,822
3	201,808
4	250,818
5	285,414
6	314,243
7	342,112
8	367,098
9	388,240
10	407,459
Total	2,710,950

The impacts to the BIA largely mirror the immigration courts in that scanning paper filings into the eROP is likely to increase costs by increasing staff workload. Further, the largest cost savings are likely to come from reduced shipping. The BIA's process requires that all ROPs sent to the BIA from the immigration court must be shipped back to the court upon completion of the appeal. Shipping costs will be eliminated for future eROPs because they will be transferred electronically, reducing costs for the BIA.

c. Office of Information Technology

The Department estimates that the implementation of the rule will increase EOIR's Office of Information Technology's (“OIT”) costs by a total of approximately $51.3 million across the first 10 years of implementation. These costs are due to the additional effort required to develop, deploy, and maintain the electronic infrastructure that serves as the backbone for electronic filing.

Because OIT developed the tools and processes necessary for the implementation of mandatory electronic filing throughout EOIR, it is the largest driver of quantifiable costs from mandatory electronic filing implementation. The deployment and training for mandatory electronic filing will be particularly resource-intensive for OIT, as it will be responsible for the deployment and maintenance of the hardware and software necessary to digitize and store documents along with delivering training to court staff. Costs related to electronic filing deployment are estimated to be approximately $21.7 million, including $2.3 million in hardware purchases, $1.7 million in travel to deliver training and install systems, and $3.4 million in external services, software, and licensing for necessary cloud computing services.

Table 4—OIT Electronic Filing Deployment Costs

Category	Year 1	Year 2	Total
External Services ( e.g., MS Azure Premier Access)	$999,429	$999,429	$1,998,858
Software	625,988	726,171	1,352,159
Travel	830,295	830,295	1,660,590
Labor/Hardware 3	11,316,689	5,355,028	16,671,717
Support Labor:
Program Support	1,717,020	900,298	2,617,318
Training	754,782	431,820	1,186,602
Service Desk/Operations	482,417	482,417	964,834
Product Labor:
eROP	2,699,130	1,322,681	4,021,811
Electronic Filing	3,741,362	1,833,416	5,574,778
Hardware	1,921,978	384,396	2,306,374
Total	13,772,401	7,910,923	21,683,324

Costs are estimated to be highest in the first year of the deployment, as hardware is purchased, software systems are finalized and implemented, and training is delivered to court staff. Costs are estimated to decrease by over 40 percent in the second deployment year as OIT completes training court staff and transitions to a steady state of software and hardware maintenance. The cost reductions in the second year of deployment will be driven by a 47 percent reduction in labor costs and an 80 percent reduction in hardware costs.

Once training and deployment are complete, OIT's costs will stabilize. While OIT will no longer incur costs related to training court staff, OIT will be using more labor than before mandatory electronic filing. This is due to the additional staff necessary to provide help desk support to the courts and IT services related to the electronic filing system. OIT will also continually accrue expenses for cloud computing platform licensing and hardware repairs, upgrades, and replacements required to support electronic filing. OIT estimates that overall costs will increase by approximately 1 percent each year, primarily driven by increases in labor costs. These ongoing expenses will represent the new steady state for OIT. The eight years following completion of the deployment phase are estimated to cost an additional $29.6 million due to mandatory electronic filing.

Table 5—OIT Electronic Filing Steady State Costs

Category	Year 3	Year 4	(4 )	Year 10	Total
External Services ( e.g., MS Azure Premier Access)	$999,429	$999,429		$999,429	$7,995,432
Software	366,521	366,521		366,521	2,932,168
Travel	0	0		0	0
Labor/Hardware	2,227,541	2,255,993		2,445,561	18,666,644
Support Labor:
Program Support	239,564	239,564		239,564	1,916,512
Training	172,728	172,728		172,728	1,381,824
Service Desk/Operations	482,417	482,417		482,417	3,859,336
Products Labor:
eROP	466,808	480,812		574,115	4,151,015
Electronic Filing	481,628	496,076		592,341	4,282,793
Electronic Filing Hardware	384,396	384,396		384,396	3,075,168
Total	3,593,491	3,621,943		3,811,510	29,594,242

As mandatory filing is implemented and electronic filing progresses, the Department anticipates that this will lead to significant additional efficiencies in case processing. This may include more expeditious case scheduling and adjudication, improved data quality, increased performance monitoring and tracking, augmented data analytics capabilities, and better alignment with information storage best practices. There may also be further impacts to EOIR's internal data-informed decision-making process, as the digitization of the data may allow for increased analysis of the relationship between various practices, procedures, and outcomes.

d. Office of the General Counsel

The Department estimates that the implementation of the rule will increase efficiencies for the EOIR Office of the General Counsel (“OGC”) programs. For example, digitization of files will allow for more expeditious compliance with Freedom of Information Act (“FOIA”) and other requests for information, reducing the time burden of such activities on EOIR staff. Specifically, the Department estimates that costs associated with FOIA compliance will decrease by approximately $2.8 million across the first 10 years of implementation. These savings will be realized through reduced shipping costs in the FOIA response process as more ROPs are accessible electronically instead of requiring storage retrieval and shipping.

As electronic filing becomes more widespread, the proportion of FOIA requests that can be satisfied through electronic records searches will proportionally increase. A higher percentage of the future pending caseload will have mandatory eROPs as a result of this regulation, which will cause the ratio of eROPs to paper ROPs, and thus expected cost savings, to increase over time, as detailed in Table 6.

Table 6—OGC Cost Savings

Year 5	Expected cost savings
1	$0
2	0
3	60,052
4	203,084
5	295,661
6	360,279
7	404,478
8	443,370
9	479,318
10	511,678
Total	2,757,920

The public may also see the added qualitative benefit of more expeditious FOIA compliance, as OGC will not have to wait for records to be shipped between locations to satisfy FOIA requests and will instead be able to search and access the records electronically.

e. The Public

The benefits to the public are high as well. Parties will be able to file documents at any time of day from any location with internet, thereby reducing postage costs and the need to physically appear at an immigration court during business hours. For many parties, this will be a substantial benefit, as the nearest immigration court may be hours away. The parties will also be able to view the eROP electronically, providing instant access to necessary documents and eliminating the need to appear at the immigration court to view the paper record. Further, parties will save on paper and toner costs required to print copies of filings, and costs associated with required process service.

The Department believes that the biggest savings to the parties before EOIR will be from reduced costs associated with mailing or hand-delivering filings that would have been incurred without the implementation of electronic filing. In FY 2018, EOIR's immigration courts received 311,761 paper filings and 2,555 electronic filings,^[6] and the BIA received 49,522 paper filings.^[7] While EOIR does not keep data regarding what methods ( e.g., Federal Express (“FedEx”), United States Postal Service (“USPS”), hand delivery by an attorney's office or a pro se party, or local courier) are used to file paper documents with EOIR and to serve those filings on the opposing party, anecdotal evidence points to filings with the immigration courts and the BIA and service on the opposing party typically being sent using FedEx or courier to ensure filings are timely. This is particularly true for filings with the BIA, because the filer must ensure actual receipt by the BIA in Falls Church, Virginia, no later than the close of business of the clerk's office on the established deadline.

To analyze the public cost savings associated with electronic filing, EOIR considered the average costs of sending filings through FedEx and USPS, the hourly rates for couriers and immigration attorneys, and the time savings from avoiding use of the immigration courts' intra-office mailing systems. Based on these preliminary estimates and filings from the previous year, if filers used FedEx for one-third of filings and used USPS for two-thirds of filings, electronic filing would have saved filers $38,780.64 in FedEx and USPS costs in the five pilot courts in FY 2018.^[8] This is compared to a cost of $1,958,898.28 in FedEx costs ^[9] and $2,772,594.49 in USPS filing costs ^[10] (assuming one-third filings via FedEx and two-thirds filings via USPS) in the other 55 courts. These estimates are based on an $18.85 average FedEx filing rate ($8.57 average Express Saver cost + $20.03 average second day cost + $27.97 overnight cost, divided by three) and a $13.34 average USPS filing rate ($7.75 average priority mail + $28.59 average priority mail express + $3.68 first-class parcel, divided by three). The Department notes that this savings is likely an underestimate due to the tendency for many filers to use next-day service.

According to the U.S. Bureau of Labor Statistics, the mean hourly wage for couriers, such as those individuals law firms may hire to deliver documents to the immigration court, is $14.13. U.S. Bureau of Labor Statistics, Occupational Employment Statistics: Occupational Employment and Wages, May 2018: 43-5021 Couriers and Messengers, available at https://www.bls.gov/​oes/​2018/​may/​oes435021.htm (last visited Aug. 28, 2021).^[11] Further, if an attorney makes the trip to the immigration court or to the BIA to handle the filing, the average cost would be $66.54 for one hour of work.^[12] Assuming that approximately one-quarter of paper filings are handled via a courier, one-quarter of paper filings are handled via an attorney,^[13] and one-half are filed using USPS or FedEx, with two-thirds of those via USPS and one-third via FedEx, the cost savings to the public of eFiling in the five pilot courts was approximately $70,916.15 ($8,026.96 for FedEx ^[14] + $11,361.23 for USPS ^[15] + $42,502.43 for the attorneys ^[16] + $9,025.54 for the couriers ^[17] ).

Overall, the Department's estimates predict an annual savings to the public from electronic filing before the immigration courts and the BIA of approximately $10,100,142.88 ($70,916.15/2,555 filings = $27.76; $27.76 * (311,761 + 2,555 + 49,522 = 363,838 total filings)). Over the course of 10 years, these savings would equal $101,001,428.80 if the annual number of filings remains constant. The Department, however, expects that the true savings will be higher as EOIR hires additional immigration judges and opens additional immigration courts, expanding the annual case processing capacity. See, e.g., EOIR, Adjudication Statistics: New Cases and Total Completions, July 8, 2021, available at https://www.justice.gov/​eoir/​page/​file/​1060841/​download (showing that initial case completions increased from 195,127 in FY 2018 to 276,984 in FY 2019). Further, additional savings are expected based on gas and tolls, paper, toner, and other office supplies.

Table 7—Cost and Savings for Public

[FY18]

FedEx envelope rates	FedEx express saver	FedEx 2day	FedEx standard overnight
FedEx Local (0-150 miles)	$7.64	$17.83	$23.53
FedEx Regional (151-600 miles)	8.16	19.34	25.80
FedEx National (601+ miles)	9.90	22.92	34.57
Average Cost	8.57	20.03	27.97
Costs of 1/3 OCIJ Paper Filings (103,920):	890,257.26	2,081,524.28	2,906,651.72
Total Costs of 1/3 BIA Paper Filings (16,507):	141,467.85	330,641.89	457,253.13
Savings from eFilings (2,555):	21,896.35	51,176.65	71,463.35

USPS rates by zone 18	Priority mail 19	Priority express 20	First-class parcel 21
USPS Zone 1&2 (0-150 miles)	$6.95	$24.43	$3.52
USPS Zone 3 (151-300 miles)	7.28	24.66	3.57
USPS Zone 4 (301-600 miles)	7.42	25.50	3.62
USPS Zone 5 (601-1000 miles)	7.65	28.47	3.66
USPS Zone 6 (1001-1400 miles)	7.83	30.37	3.71
USPS Zone 7 (1401-1800)	8.21	32.27	3.76
USPS Zone 8 (1801+)	8.90	34.45	3.89
Average Cost	7.75	28.59	3.68
Costs of 2/3 OCIJ Paper Filings (207,841):	1,610,765.17	5,942,164.66	764,853.65
Costs of 2/3 BIA Paper Filings (16,507):	255,863.67	943,889.32	121,493.70
Savings from eFilings (2,555):	19,801.25	73,047.45	9,402.40

Documents will also be served by electronic notification where applicable, which will provide near-instantaneous service. This will particularly benefit the parties when EOIR electronically serves orders and decisions on parties participating in electronic filing, as the appeal clock begins to run when the order is sent. This will allow the parties to begin preparing for any potential appeals immediately without having to wait for the order or decision to arrive in the mail as is currently the practice.

These potential benefits are reflected in the private bar's long-standing requests for electronic filing with EOIR. See, e.g., EOIR, EOIR/AILA Liaison Meeting, Sept. 26, 2002, available at https://www.justice.gov/​eoir/​eoir-aila-sep26-2002 (last updated Feb. 13, 2015) (discussing “e-filing initiative”). In addition, since the July 2018 launch of the electronic filing pilot program, more than 15,000 attorneys have signed up for ECAS, indicating a strong interest in electronic filing. Moreover, at the pilot sites, approximately half of all active attorneys and accredited representatives in those sites have signed up for the pilot despite having no obligation to participate.

2. Costs and Savings Related to Rules Regarding Law Student and Law Graduate Filings

This rulemaking also proposes changes to law student and law graduate filing and accompaniment rules. First, EOIR believes that there will be minimal, if any, costs associated with requiring the supervisor to electronically file documents with EOIR, rather than the law student or law graduate filing on paper. And, if there are any associated costs, they will be outweighed by the substantial benefits of electronic filing, including immediate access to the eROP and the ability to file at any time of day from any location with internet access without the cost or reliance on mail carriers.

As to the proposed accompaniment change, EOIR does not maintain data on how many law students appear in immigration court or how many of those appear without a supervisor present, though it understands that in most cases, a supervisor does accompany the law student. Moreover, regardless of EOIR's rules, in many cases a supervisor is required to accompany the law student or graduate in order to comply with applicable state bar rules. See, e.g., Cal. R. Ct. 9.42(d)(3) (allowing certified California law students to appear “on behalf of the client in any public trial, hearing, arbitration, or proceeding, or before any arbitrator, court, public agency, referee, magistrate, commissioner, or hearing officer, to the extent approved by such arbitrator, court, public agency, referee, magistrate, commissioner, or hearing officer,” provided that, among other requirements, the certified law student “[p]erforms the activity under the direct and immediate supervision and in the personal presence of the supervising attorney”).

EOIR recognizes that in rare cases in which a law school clinic or similar program does not currently send a supervising attorney to every hearing at which a law student or law graduate appears, there may be some increased cost. EOIR expects those increased costs to be minimal, however, due to the rarity of cases in which law students and law graduates appear unsupervised, the availability of telephonic appearances, and the final rule's modification to allow law students and law graduates to appear from locations separate from their supervisors with adjudicator permission.^[22] Further, EOIR believes that the benefits of ensuring that every case has a single licensed representative responsible for service of process and ultimate representation in the case outweighs the potential costs associated with the increased accompaniment requirements.^[23]

E. Executive Order 13132 (Federalism)

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

F. Executive Order 12988 (Civil Justice Reform)

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

G. Paperwork Reduction Act

This rulemaking does not propose new or revisions to existing “collection[s] of information” as that term is defined in the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320.

List of Subjects

8 CFR Part 1001

• Administrative practice and procedure
• Immigration

8 CFR Part 1003

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

8 CFR Part 1103

• Administrative practice and procedure
• Authority delegations (Government agencies)
• Reporting and recordkeeping requirements

8 CFR Part 1208

• Administrative practice and procedure
• Aliens
• Immigration
• Reporting and recordkeeping requirements

8 CFR Part 1214

• Administrative practice and procedure
• Aliens

8 CFR Part 1240

• Administrative practice and procedure
• Aliens

8 CFR Part 1245

• Aliens
• Immigration
• Reporting and recordkeeping requirements

8 CFR Part 1246

• Administrative practice and procedure
• Aliens
• Immigration

8 CFR Part 1292

• Administrative practice and procedure
• Immigration
• Lawyers
• Reporting and recordkeeping requirements

Accordingly, for the reasons set forth in the preamble, the Department amends 8 CFR parts 1001, 1003, 1103, 1208, 1214, 1240, 1245, 1246, and 1292 as follows:

PART 1001—DEFINITIONS

1. The authority citation for part 1001 continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1101, 1103; Pub. L. 107-296, 116 Stat. 2135; Title VII of Pub. L. 110-229.

2. Amend § 1001.1 by revising paragraph (s) and adding paragraphs (cc), (dd), and (ee) to read as follows:

§ 1001.1

Definitions.

* * * * *

(s) The terms government counsel or DHS counsel, in the context of proceedings in which DHS has appeared, mean any officer assigned to represent DHS in any proceeding before an immigration judge or the Board of Immigration Appeals.

* * * * *

(cc) The term case eligible for electronic filing means any case that DHS seeks to bring before an immigration court after EOIR has formally established an electronic filing system for that court, or any case before an immigration court or the Board of Immigration Appeals that has an electronic record of proceeding. Any reference to a record of proceeding in this chapter shall include an electronic record of proceeding.

(dd) The term filing means the actual receipt of a document by the appropriate immigration court or the Board of Immigration Appeals. An electronic filing that is accepted by the Board or an immigration court will be deemed filed on the date it was submitted. A paper filing that is accepted by the Board or an immigration court will be deemed filed on the date it was received by the Board or the immigration court. A filing that is rejected by the Board or the immigration court as an improper filing will not be deemed filed on the date it was submitted or received.

(ee) The term service means physically presenting, mailing, or electronically providing a document to the appropriate party or parties; except that an Order to Show Cause or Notice of Deportation Hearing shall be served in person to the alien, or by certified mail to the alien or the alien's attorney, and a Notice to Appear shall be served to the alien in person, or if personal service is not practicable, shall be served by regular mail to the alien or the alien's attorney of record.

PART 1003—EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

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

Authority: 5 U.S.C. 301; 6 U.S.C. 521; 8 U.S.C. 1101, 1103, 1154, 1155, 1158, 1182, 1226, 1229, 1229a, 1229b, 1229c, 1231, 1254a, 1255, 1324d, 1330, 1361, 1362; 28 U.S.C. 509, 510, 1746; sec. 2 Reorg. Plan No. 2 of 1950; 3 CFR, 1949-1953 Comp., p. 1002; section 203 of Pub. L. 105-100, 111 Stat. 2196-200; sections 1506 and 1510 of Pub. L. 106-386, 114 Stat. 1527-29, 1531-32; section 1505 of Pub. L. 106-554, 114 Stat. 2763A-326 to -328.

4. Amend § 1003.1 by revising paragraph (f) to read as follows:

§ 1003.1

Organization, jurisdiction, and powers of the Board of Immigration Appeals.

* * * * *

(f) Service of Board decisions. The decision of the Board shall be in writing. The Board shall transmit a copy to DHS and serve a copy upon the alien or the alien's representative, as provided in part 1292 of this chapter.

* * * * *

5. Amend § 1003.2 by:

a. Revising paragraph (g) introductory text, (g)(1), and (g)(2)(i) through (iii); and

b. Adding paragraphs (g)(4) through (9).

The revisions and additions read as follows:

§ 1003.2

Reopening or reconsideration before the Board of Immigration Appeals.

* * * * *

(g) Filing procedures. This paragraph applies to the filing of documents related to reopening and reconsideration before the Board.

(1) English language and entry of appearance. A motion and any submission made in conjunction with a motion must be in English or accompanied by a certified English translation. If the moving party, other than DHS, is represented, Form EOIR-27, Notice of Entry of Appearance as Attorney or Representative Before the Board, must be filed with the motion.

(2) * * *

(i) A motion to reopen or motion to reconsider a decision of the Board pertaining to proceedings before an immigration judge shall be filed directly with the Board. Such motion must be accompanied by a payment in a manner authorized by EOIR or fee waiver request in satisfaction of the fee requirements of § 1003.8. The record of proceeding pertaining to such a motion shall be forwarded to the Board upon the request or order of the Board.

(ii) A motion to reopen or a motion to reconsider a decision of the Board pertaining to a matter initially adjudicated by an officer of DHS shall be filed with the officer of DHS having administrative control over the record of proceeding.

(iii) If the motion is made by DHS in proceedings in which DHS has administrative control over the record of proceedings, the record of proceedings in the case and the motion shall be filed directly with the Board. If such motion is filed directly with an office of DHS, the entire record of proceeding shall be forwarded to the Board by the DHS officer promptly upon receipt of the briefs of the parties, or upon expiration of the time allowed for the submission of such briefs.

* * * * *

(4) Filing parties. DHS and all attorneys and accredited representatives of record for respondents, applicants, or petitioners are required to electronically file all documents with the Board through EOIR's electronic filing application in all cases eligible for electronic filing. Although not required, unrepresented respondents, applicants, or petitioners; reputable individuals and accredited officials who are the representatives of record; other authorized individuals; and practitioners filing an EOIR-60, may electronically file documents with the Board through EOIR's electronic filing application in cases eligible for electronic filing. An unrepresented respondent, applicant, or petitioner; reputable individual; accredited official; other authorized individual; or practitioner filing an EOIR-60, who elects to use EOIR's electronic filing application shall be required to register with EOIR as a condition of using that application. If a party not required to file electronically opts to use EOIR's electronic filing application for a case, the individual must electronically file all documents with the Board for that case unless the Board, only upon a motion filed by the individual with good cause shown, grants leave to opt out of using the electronic filing application. Such an indvidual who has been granted leave to opt out of using EOIR's electronic filing application for a case may not subsequently opt in again to use that application for the same case.

(5) Filing requirements. Parties must make the originals of all filed documents available upon request to the Board or the opposing party for review. If EOIR's electronic filing application is unavailable due to an unplanned system outage on the last day for filing in a specific case, then the filing deadline will be extended to the first day that the electronic filing application becomes accessible that is not a Saturday, Sunday, or legal holiday. For planned system outages, parties must electronically file documents during system availability within the applicable filing deadline or paper file documents within the applicable filing deadline. EOIR will issue public communications for planned system outages ahead of the scheduled outage. Any planned system outage announced five or fewer business days prior to the start of the outage will be treated as an unplanned outage. The Board retains discretion to accept paper filings in all cases.

(6) Classified information. Notwithstanding any other provision of this chapter, classified information is never allowed to be electronically filed.

(7) Sealed medical documents. Notwithstanding any other provision of this chapter, parties are not permitted to file electronically any sealed medical documents.

(8) Signatures. All documents filed with the Board that require a signature must have an original, handwritten ink signature, an encrypted digital signature, or an electronic signature. Electronic filings submitted through EOIR's electronic filing application that require the user's signature may have a conformed signature. This paragraph (g)(8) is subject to the requirements of the application or document being submitted.

(9) Service. The service of filings with the Board depends on whether the documents are filed through EOIR's electronic filing application or in paper.

(i) Service of electronic filings. If all parties are using EOIR's electronic filing application in a specific case, the parties do not need to serve a document that is filed through EOIR's electronic filing application on the opposing party. EOIR's electronic filing application will effectuate service by providing a notification of all electronically filed documents on all parties by email. Upon successful upload by one of the parties, EOIR will email a notification to the email addresses provided in paragraph (g)(9)(ii) of this section. If one or more parties are not filing through EOIR's electronic filing application in a specific case, the parties must follow the service procedures in paragraph (g)(9)(iii) of this section.

(ii) Valid email address. Use of EOIR's electronic filing application requires a valid email address for electronic service. The Board will use the email address provided through eRegistry for electronic service on participating parties. Users must immediately update their eRegistry account if their email address changes. Representatives must additionally file a new Form EOIR-27 with the Board if their email address changes. EOIR will consider service completed when the electronic notification is delivered to the last email address on file provided by the user.

(iii) Service of paper filings. If electronic filing is not being used in a particular case, the party filing with the Board must serve a copy of the filing on the opposing party and include a certificate of service showing service on the opposing party with their filing. If the moving party is not DHS, service of the motion shall be made upon the ICE Office of the Principal Legal Advisor for the field location in which the case was completed before the immigration judge.

* * * * *

6. Amend § 1003.3 by revising paragraphs (a)(2) and (3) and (c)(2) and adding paragraph (g) to read as follows:

§ 1003.3

Notice of appeal.

(a) * * *

(2) Appeal from decision of a DHS officer. A party affected by a decision of a DHS officer that may be appealed to the Board under this chapter shall be given notice of the opportunity to file an appeal. An appeal from a decision of a DHS officer shall be taken by filing a Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer (Form EOIR-29) directly with the DHS office having administrative control over the record of proceeding within 30 days of the service of the decision being appealed. An appeal is not properly filed until it is received at the appropriate DHS office, together with all required documents, and the fee provisions of § 1003.8 are satisfied.

(3) General requirements for all appeals. The appeal must be accompanied by a payment in a manner authorized by EOIR or fee waiver request in satisfaction of the fee requirements of § 1003.8. If the respondent or applicant is represented, a Notice of Entry of Appearance as Attorney or Representative Before the Board (Form EOIR-27) must be filed with the Notice of Appeal. The appeal and all attachments must be in English or accompanied by a certified English translation.

* * * * *

(c) * * *

(2) Appeal from decision of a DHS officer. Briefs in support of or in opposition to an appeal from a decision of a DHS officer shall be filed directly with the DHS office having administrative control over the file. The alien and DHS shall be provided 21 days in which to file a brief, unless a shorter period is specified by the DHS officer from whose decision the appeal is taken, and reply briefs shall be permitted only by leave of the Board. Upon written request of the alien, the DHS officer from whose decision the appeal is taken or the Board may extend the period for filing a brief for good cause shown. The Board may authorize the filing of briefs directly with the Board. In its discretion, the Board may consider a brief that has been filed out of time. All briefs and other documents filed in conjunction with an appeal, unless filed by an alien directly with a DHS office, shall include proof of service on the opposing party.

* * * * *

(g) Filing. This paragraph applies to the filing of documents related to appeals before the Board.

(1) Filing parties. DHS and all attorneys and accredited representatives of record for respondents, applicants, or petitioners are required to electronically file all documents with the Board through EOIR's electronic filing application in all cases eligible for electronic filing. Although not required, unrepresented respondents, applicants, or petitioners; reputable individuals and accredited officials, who are the representatives of record; other authorized individuals; and practitioners filing an EOIR-60, may electronically file documents with the Board through EOIR's electronic filing application in cases eligible for electronic filing. An unrepresented respondent, applicant, or petitioner; reputable individual; accredited official; other authorized individual; or practitioner filing an EOIR-60, who elects to use EOIR's electronic filing application shall be required to register with EOIR as a condition of using that application. If a party not required to file electronically opts to use EOIR's electronic filing application for a case, the individual must electronically file all documents with the Board for that case unless the Board, only upon a motion filed by the individual with good cause shown, grants leave to opt out of using the electronic filing application. Such an individual who has been granted leave to opt out of using EOIR's electronic filing application for a case may not subsequently opt in to use that application for the same case.

(2) Filing requirements. Parties must make the originals of all filed documents available upon request to the Board or to the opposing party for review. If EOIR's electronic filing application is unavailable due to an unplanned system outage on the last day for filing in a specific case, then the filing deadline will be extended to the first day that the electronic filing application becomes accessible that is not a Saturday, Sunday, or legal holiday. For planned system outages, parties must electronically file documents during system availability within the applicable filing deadline or paper file documents within the applicable filing deadline. EOIR will issue public communications for planned system outages ahead of the scheduled outage. Any planned system outage announced five or fewer business days prior to the start of the outage will be treated as an unplanned outage. The Board retains discretion to accept paper filings in all cases.

(3) Classified information. Notwithstanding any other provision of this chapter, classified information is never allowed to be electronically filed.

(4) Sealed medical documents. Notwithstanding any other provision of this chapter, parties are not permitted to file electronically any sealed medical documents.

(5) Signatures. All documents filed with the Board that require a signature must have an original, handwritten ink signature, an encrypted digital signature, or an electronic signature. Electronic filings submitted through EOIR's electronic filing application that require the user's signature may have a conformed signature. This paragraph is subject to the requirements of the application or document being submitted.

(6) Service. The service of filings with the Board depends on whether the documents are filed through EOIR's electronic filing application or in paper.

(i) Service of electronic filings. If all parties are using EOIR's electronic filing application in a specific case, the parties do not need to serve a document that is filed through EOIR's electronic filing application on the opposing party. EOIR's electronic filing application will effectuate service by providing a notification of all electronically filed documents on all parties by email. Upon successful upload by one of the parties, EOIR will email a notification to the email addresses provided in paragraph (g)(6)(ii) of this section. If one or more parties are not filing through EOIR's electronic filing application in a specific case, the parties must follow the service procedures in paragraph (g)(6)(iii) of this section.

(ii) Valid email address. Use of EOIR's electronic filing application requires a valid email address for electronic service. The Board will use the email address provided through eRegistry for electronic service on participating parties. Users must immediately update their eRegistry account if their email address changes. Representatives must additionally file a new Form EOIR-27 with the Board if their email address changes. EOIR will consider service completed when the electronic notification is delivered to the last email address on file provided by the user.

(iii) Service of paper filings. If electronic filing is not being used in a particular case, the party filing with the Board must serve a copy of the filing on the opposing party and include a certificate of service showing service on the opposing party with their filing.

7. Amend § 1003.8 by revising the last sentence of paragraph (a)(3) to read as follows:

§ 1003.8

Fees before the Board.

(a) * * *

(3) * * * If the fee waiver request does not establish the inability to pay the required fee, the appeal or motion will not be deemed properly filed, provided the Board grants 15 days to re-file the rejected document with the filing fee or new fee waiver request and tolls any applicable filing deadline during the 15-day cure period.

* * * * *

§ 1003.13

[Amended]

8. Amend § 1003.13 by removing the definitions of “Filing” and “Service”.

9. Amend § 1003.17 by revising paragraph (a) to read as follows:

§ 1003.17

Appearances.

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

* * * * *

10. Amend § 1003.23 by revising paragraph (b)(1)(ii) to read as follows:

§ 1003.23

Reopening or reconsideration before the immigration court.

* * * * *

(b) * * *

(1) * * *

(ii) Filing. Motions to reopen or reconsider a decision of an immigration judge must be filed with the immigration court having administrative control over the Record of Proceeding. If necessary under § 1003.32, a motion to reopen or a motion to reconsider shall include a certificate showing service on the opposing party of the motion and all attachments. If the moving party is not DHS, service of the motion shall be made upon the ICE Office of the Principal Legal Advisor for the field location in which the case was completed. If the moving party, other than DHS, is represented, a Form EOIR-28, Notice of Appearance as Attorney or Representative Before an Immigration Judge must be filed with the motion. For any motion requiring a fee, that motion must be accompanied by a fee receipt, an alternate proof of payment consistent with § 1103.7(a)(3), or a fee waiver request pursuant to § 1103.7(c). If filed in paper, the motion must be filed in duplicate with the immigration court.

* * * * *

11. Amend § 1003.24 by revising the last sentence of paragraph (d) to read as follows:

§ 1003.24

Fees pertaining to matters within the jurisdiction of an immigration judge.

* * * * *

(d) * * * If the request for a fee waiver is denied, the application or motion will not be deemed properly filed, provided the immigration judge grants 15 days to re-file the rejected document with the filing fee or new fee waiver request and tolls any applicable filing deadline during the 15-day cure period.

12. Revise § 1003.31 to read as follows:

§ 1003.31

Filing documents and applications.

This section applies to the filing of all documents, including motions and applications, before the immigration courts.

(a) Filing parties. DHS and all attorneys and accredited representatives of record for persons appearing before the immigration courts are required to electronically file all documents, including charging documents, with the immigration courts through EOIR's electronic filing application in all cases eligible for electronic filing. Although not required, unrepresented respondents or applicants; reputable individuals and accredited officials who are representatives of record; other authorized individuals; and practitioners filing an EOIR-61, may electronically file documents with the immigration courts through EOIR's electronic filing application in cases eligible for electronic filing. An unrepresented respondent or applicant; reputable individual; accredited official; other authorized individual; or practitioner filing an EOIR-61, who elects to use EOIR's electronic filing application shall be required to register with EOIR as a condition of using that application. If a party not required to file electronically opts to use EOIR's electronic filing application for a case, the individual must electronically file all documents with the immigration courts for that case unless an immigration judge, only upon a motion filed by the individual with good cause shown, grants leave to opt out of using the electronic filing application. Such an individual who has been granted leave to opt out of using EOIR's electronic filing application for a case may not subsequently opt in to use that application for the same case.

(b) Filing requirements. If EOIR's electronic filing application is unavailable due to an unplanned system outage on the last day for filing in a specific case, then the filing deadline will be extended to the first day that the electronic filing application becomes accessible that is not a Saturday, Sunday, or legal holiday. For planned system outages, parties must electronically file documents during system availability within the applicable filing deadline or paper file documents within the applicable filing deadline. EOIR will issue public communications for planned system outages ahead of the scheduled outage. Any planned system outage announced five or fewer business days prior to the start of the outage will be treated as an unplanned outage. In all other situations in cases eligible for electronic filing, an immigration judge retains the discretion to accept paper filings in all cases.

(c) Originals. Parties must make the originals of all filed documents available upon request to the immigration court or the opposing party for review.

(d) Classified information. Notwithstanding any other provision of this chapter, classified information is never allowed to be electronically filed.

(e) Sealed medical documents. Notwithstanding any other provision of this chapter, parties are not permitted to file electronically any sealed medical documents.

(f) Where to file. All documents that are to be considered in a proceeding before an immigration judge must be filed with the immigration court having administrative control over the Record of Proceeding.

(g) Fees. Except as provided in § 1240.11(f) of this chapter, all documents or applications filed with the immigration courts requiring the payment of a fee must be accompanied by a fee receipt from DHS, alternate proof of payment consistent with §  1103.7(a)(3) of this chapter, or a fee waiver request pursuant to § 1103.7(c). Except as provided in § 1003.8, any fee relating to immigration judge proceedings shall be paid to, and accepted by, any DHS office authorized to accept fees for other purposes pursuant to § 1103.7(a).

(h) Filing deadlines. The immigration judge may set and extend time limits for the filing of applications and related documents and responses thereto, if any. If an application or document is not filed within the time set by the immigration judge, the opportunity to file that application or document shall be deemed waived.

(i) Filing under seal. DHS may file documents under seal by including a cover sheet identifying the contents of the submission as containing information which is being filed under seal. Documents filed under seal shall only be examined by persons with authorized access to the administrative record.

(j) Signatures. All documents filed with the immigration courts that require a signature must have an original, handwritten ink signature, an encrypted digital signature, or an electronic signature. Electronic filings submitted through EOIR's electronic filing application that require the user's signature may have a conformed signature. This paragraph is subject to the requirements of the application or document being submitted.

13. Revise § 1003.32 to read as follows:

§ 1003.32

Service and size of documents.

The service of filings with the immigration courts depends on whether the documents are filed through EOIR's electronic filing application or in paper.

(a) Service of electronic filings. If all parties are using EOIR's electronic filing application in a specific case, the parties do not need to serve a document that is filed through EOIR's electronic filing application on the opposing party. If all parties are using EOIR's electronic filing application in a specific case, EOIR's electronic filing application will effectuate service by providing a notification of all electronically filed documents on all parties. Upon successful upload by one of the parties, EOIR will email a notification to the email addresses provided in paragraph (b) of this section. If one or more parties are not filing through EOIR's electronic filing application in a specific case, the parties must follow the service procedures in paragraph (c) of this section.

(b) Valid email address. Use of EOIR's electronic filing application requires a valid email address for electronic service. The immigration courts will use the email address provided through eRegistry for electronic service on participating parties. Users must immediately update their eRegistry account if their email address changes. Representatives must additionally file a new Form EOIR-28 with the immigration court if their email address changes. EOIR will consider service completed when the electronic notification is delivered to the last email address on file provided by the user.

(c) Service of paper filings. If electronic filing is not being used in a particular case, the party filing with the immigration court must serve a copy of the filing on the opposing party and include a certificate of service showing service on the opposing party with their filing. The immigration judge will not consider any documents or applications that do not contain a certificate of service unless service is made on the record during a hearing.

(d) Size and format of documents. Unless otherwise permitted by the immigration judge, all written material presented to immigration judges including offers of evidence, correspondence, briefs, memoranda, or other documents must be submitted on 8 1/2 ″ x 11″ size pages, whether filed electronically or in paper. The immigration judge may require that exhibits and other written material presented be indexed, paginated, and that a table of contents be provided.

14. Amend § 1003.37 by revising paragraph (a) to read as follows:

§ 1003.37

Decisions.

(a) A decision of the immigration judge may be rendered orally or in writing. If the decision is oral, it shall be stated by the immigration judge in the presence of the parties and a memorandum summarizing the oral decision shall be served on the parties. If the decision is in writing, it shall be served on the parties by personal service, mail, or electronic notification.

* * * * *

15. Amend § 1003.38 by revising paragraph (b) to read as follows:

§ 1003.38

Appeals.

* * * * *

(b) The Notice of Appeal from a Decision of an Immigration Judge (Form EOIR-26) shall be filed directly with the Board of Immigration Appeals within 30 calendar days after the stating of an immigration judge's oral decision or the mailing or electronic notification of an immigration judge's written decision. If the final date for filing falls on a Saturday, Sunday, or legal holiday, this appeal time shall be extended to the next business day. A Notice of Appeal (Form EOIR-26) may not be filed by any party who has waived appeal.

* * * * *

16. Amend § 1003.63 by revising the last sentence in paragraphs (f)(1) and (2) to read as follows:

§ 1003.63

Applications.

* * * * *

(f) * * *

(1) * * * A comment or recommendation not sent to the Director electronically must include proof of service on the applicant.

(2) * * * All responses must be filed with the Director and include proof of service of a copy of such response on the commenting party.

17. Amend § 1003.64 by revising the last sentence in paragraph (b) introductory text to read as follows:

§ 1003.64

Approval and denial of applications.

* * * * *

(b) * * * The written notice shall be served at the address provided on the application unless the applicant subsequently provides a change of address pursuant to § 1003.66, or shall be transmitted to the applicant electronically.

* * * * *

18. Amend § 1003.65 by revising the first sentence in paragraph (d)(3) to read as follows:

§ 1003.65

Removal of a provider from the List.

* * * * *

(d) * * *

(3) * * * The provider may submit a written answer within 30 days from the date the notice is served or is sent to the provider electronically. * * *

* * * * *

19. Amend § 1003.106 by revising the second sentence in paragraph (a)(2)(ii) and the seventh sentence in paragraph (b) to read as follows:

§ 1003.106

Right to be heard and disposition.

(a) * * *

(2) * * *

(ii) * * * When designating the time and place of a hearing, the adjudicating official shall provide for the service of a notice of hearing on the practitioner or the authorized officer of the recognized organization and the counsel for the government. * * *

* * * * *

(b) * * * The adjudicating official shall provide for service of a written decision or memorandum summarizing an oral decision on the practitioner or, in cases involving a recognized organization, on the authorized officer of the organization and on the counsel for the government. * * *

* * * * *

PART 1103—APPEALS, RECORDS, AND FEES

20. The authority citation for part 1103 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; 28 U.S.C. 509, 510.

21. Amend § 1103.7 by revising paragraph (a)(3) to read as follows:

§ 1103.7

Fees.

(a) * * *

(3) All other fees payable in connection with immigration proceedings. Except as provided in 8 CFR 1003.8, the Executive Office for Immigration Review does not accept the payment of any fee relating to Executive Office for Immigration Review proceedings. Instead, such fees, when required, shall be paid to, and accepted by, an office of the Department of Homeland Security authorized to accept fees, as provided in 8 CFR 103.7(a)(1). The Department of Homeland Security shall return to the payer, at the time of payment, a receipt for any fee paid, and shall also return to the payer any documents, submitted with the fee, relating to any immigration proceeding. The fee receipt and the application or motion shall then be submitted to the Executive Office for Immigration Review. If the payer has paid any required fee but has not received the fee receipt from the Department of Homeland Security by the deadline set by the immigration judge, the payer must instead provide to the immigration court a copy of proof of the payment to the Department of Homeland Security with the filing. The payer must then submit a copy of the fee receipt by a new deadline set by the immigration judge. If the immigration judge does not set a deadline, the alien must submit the fee receipt no later than 45 days after the date of filing of the application. Remittances to the Department of Homeland Security for applications, motions, or forms filed in connection with immigration proceedings shall be payable subject to the provisions of 8 CFR 103.7(a)(2).

* * * * *

PART 1208—PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

22. The authority citation for part 1208 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title VII of Pub. L. 110-229; Pub. L. 115-218.

23. Amend § 1208.4 by revising the fifth sentence of paragraph (a)(2)(ii) to read as follows:

§ 1208.4

Filing the application.

* * * * *

(a) * * *

(2) * * *

(ii) * * * For cases before the immigration court, the application is considered to have been filed on the date it is received by the immigration court. * * *

* * * * *

PART 1214—REVIEW OF NONIMMIGRANT CLASSES

24. The authority citation for part 1214 continues to read as follows:

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and 1931 note, respectively; 8 CFR part 2.

§ 1214.2

[Amended]

25. Amend § 1214.2 by:

a. Removing the words “Service counsel” and adding in their place the words “DHS counsel” in paragraph (a);

b. Removing the words “Service custody” and adding in their place the words “DHS custody” in paragraph (a); and

c. Removing the words “the Service” and adding in their place the word “DHS”, wherever they appear.

PART 1240—PROCEEDINGS TO DETERMINE REMOVABILITY OF ALIENS IN THE UNITED STATES

26. The authority citation for part 1240 continues to read as follows:

Authority: 8 U.S.C. 1103, 1158, 1182, 1186a, 1186b, 1225, 1226, 1227, 1228, 1229a, 1229b, 1229c, 1252 note, 1361, 1362; secs. 202 and 203, Pub. L. 105-100 (111 Stat. 2160, 2193); sec. 902, Pub. L. 105-277 (112 Stat. 2681).

27. Amend § 1240.2 by:

a. Revising the section heading;

b. Removing the words “Service counsel” and adding in their place the words “DHS counsel” in paragraph (a), wherever they appear;

c. Removing the words “Service attorney” and adding in their place the words “DHS counsel” in paragraph (b), wherever they appear; and

d. Removing the words “the Service” and adding in their place the word “DHS”, wherever they appear.

The revision reads as follows:

§ 1240.2

DHS Counsel.

* * * * *

§ 1240.10

[Amended]

28. Amend § 1240.10 by:

a. Removing the words “an Service counsel” and adding in their place the words “DHS counsel” in paragraph (d); and

b. Removing the words “the Service” and adding in their place the word “DHS” in paragraphs (d) and (e).

§ 1240.11

[Amended]

29. Amend § 1240.11 by:

a. Removing the words “Service counsel” and adding in their place the words “DHS counsel” in paragraphs (c)(3)(iv) and (c)(4); and

b. Removing the words “the Service” and adding in their place the word “DHS” in paragraph (e), wherever they appears.

§ 1240.13

[Amended]

30. Amend § 1240.13 by removing the words “Service counsel” and adding in their place the words “DHS counsel” in paragraphs (a) through (c), wherever they appear.

§ 1240.26

[Amended]

31. Amend § 1240.26 by:

a. Removing the words “Service counsel” and adding in their place the words “DHS counsel” in paragraph (b)(2);

b. Removing the words “the Service” and adding in their place the word “DHS” in paragraphs (a), (b)(3)(i) introductory text, (b)(3)(i)(B), and (b)(3)(ii);

c. Removing the words “The Service” and adding in their place the word “DHS” in paragraph (b)(3)(ii), wherever they appear, and in paragraph (c)(2).

§ 1240.32

[Amended]

32. Amend § 1240.32 by:

a. Removing the words “Service counsel” and adding in their place the words “DHS counsel” in paragraph (c);

b. Removing the words “the Service” and adding in their place the word “DHS” in paragraph (c), wherever they appear; and

c. Removing the words “The Service” and adding in their place the word “DHS” in paragraph (c).

§ 1240.33

[Amended]

33. Amend § 1240.33 by removing the words “Service counsel” and adding in their place the words “DHS counsel” in paragraphs (c)(4) and (d).

§ 1240.48

[Amended]

34. Amend § 1240.48 by:

a. Removing the words “the Service” and adding in their place the word “DHS”; and

b. Removing the words “Service counsel” and adding in their place the words “DHS counsel”.

§ 1240.49

[Amended]

35. Amend § 1240.49 by:

a. Removing the words “Service counsel” and adding in their place the words “DHS counsel” in paragraphs (c)(4)(iv) and (c)(5); and

b. Removing the words “the Service” and adding in their place the word “DHS” in paragraph (e); and

§ 1240.51

[Amended]

36. Amend § 1240.51 by removing the words “Service counsel” and adding in their place the words “DHS counsel” in paragraphs (a) and (b).

37. Amend § 1240.53 by revising paragraph (a) to read as follows:

§ 1240.53

Appeals.

(a) Appeal to the Board. Pursuant to 8 CFR part 1003, an appeal shall lie from a decision of an immigration judge to the Board, except that no appeal shall lie from an order of deportation entered in absentia. The procedures regarding the filing of a Form EOIR-26, Notice of Appeal, fees, and briefs are set forth in §§ 1003.3, 1003.31, and 1003.38 of this chapter. An appeal shall be filed within 30 calendar days after the mailing or electronic notification of a written decision, the stating of an oral decision, or the service of a summary decision. The filing date is defined as the date of receipt of the Notice of Appeal by the Board. The reasons for the appeal shall be stated in the Form EOIR-26, Notice of Appeal, in accordance with the provisions of § 1003.3(b) of this chapter. Failure to do so may constitute a ground for dismissal of the appeal by the Board pursuant to § 1003.1(d)(2) of this chapter.

* * * * *

PART 1245—ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE

38. The authority citation for part 1245 continues to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1255; section 202, Pub. L. 105-100, 111 Stat. 2160, 2193; section 902, Pub. L. 105-277, 112 Stat. 2681; Title VII of Pub. L. 110-229.

§ 1245.21

[Amended]

39. Amend § 1245.21 by:

a. Removing the words “The Service” and adding in their place the word “DHS” in paragraphs (a) introductory text, (b)(1) introductory text, (d)(2), and (m)(2) and (4), wherever they appear;

b. Removing the words “the Service” and adding in their place the word “DHS” in paragraphs (b)(1)(i), (c), (d) introductory text, (d)(2) and (4), (h) through (l), and (m)(2) through (4), wherever they appear;

c. Removing the words “Service counsel” and adding in their place the words “DHS counsel” in paragraph (c);

d. Removing the words “the Service's” and adding in their place the word “DHS's” in paragraphs (j) and (m)(2); and

e. Removing the words “Service files” and adding in their place the words “DHS files” in paragraph (g)(3).

PART 1246—RECISSION OF ADJUSTMENT OF STATUS

40. The authority citation for part 1246 continues to read as follows:

Authority: 8 U.S.C. 1103, 1254, 1255, 1256, 1259; 8 CFR part 2.

§ 1246.5

[Amended]

41. Amend § 1246.5 by removing the words “Service counsel” and adding in their place the words “DHS counsel”, in paragraph (a), wherever they appear.

PART 1292—REPRESENTATION AND APPEARANCES

42. The authority citation for part 1292 continues to read as follows:

Authority: 8 U.S.C. 1103, 1362.

43. Amend § 1292.1 by revising paragraphs (a)(2)(ii) through (iv) and adding paragraph (a)(2)(v) to read as follows:

§ 1292.1

Representation of others.

(a) * * *

(2) * * *

(ii) In the case of a law student, he or she has filed a statement that he or she is participating, under the direct supervision of an EOIR-registered licensed attorney or accredited representative, in a legal aid program or clinic conducted by a law school or non-profit organization, and that he or she is without direct or indirect remuneration from the alien he or she represents;

(iii) In the case of a law graduate, he or she has filed a statement that he or she is appearing under the supervision of an EOIR-registered licensed attorney or accredited representative and that he or she is appearing without direct or indirect remuneration from the alien he or she represents;

(iv) When the law student or law graduate appears before the immigration court or the Board of Immigration Appeals, the law student or law graduate is supervised by an attorney or accredited representative who must appear simultaneously at the same hearing. The accompanying attorney or accredited representative must be authorized to practice before EOIR and be prepared to proceed with the case at all times; and

(v) All filings by law students and law graduates are made through an EOIR-registered attorney or accredited representative.

* * * * *

Dated: December 4, 2021.

Lisa O. Monaco,

Deputy Attorney General.

Footnotes

1. All dollar amounts cited in this discussion are calculated to correspond with what would have been the value in December 2016 using the U.S. Bureau of Labor Statistics (BLS) Consumer Price Index inflation calculator found at https://www.bls.gov/​data/​inflation_​calculator.htm (last visited Mar. 1, 2021).

2. Savings listed are an overestimation as they include all filings, rather than only those filings that can be done electronically at this time ( i.e., the savings include filings by pro se respondents who cannot yet use ECAS). In addition, the Department notes that any differences in the amount of cost and benefits listed herein from those noted in the NPRM are the result of changes in when the Department applied rounding in the calculation for consistency and not due to substantive changes in the calculations.

3.  Labor/Hardware represents a total of the individual categories of support labor, product labor, and hardware.

4.  Years 5 through 9 are not included in this visual, but are factored into the totals calculations. OIT estimates that labor costs will increase by 3 percent per year. Non-labor costs, such as hardware, software, and external services, remain constant through each year.

5.  FOIA volume is estimated at 50,000 per year, an approximation based on EOIR's FY 2018 FOIA volume.

6.  These numbers represent the paper and electronic filing of initial Forms I-862, Notice to Appear, and I-863, Notice of Referral to the Immigration Judge, by DHS at the immigration courts nationwide for the fiscal year. EOIR does not have data regarding the number of paper vs. electronic filings directly by respondents in proceedings or their representatives, such as the relative number of paper vs. electronically filed motions, applications for relief or protection, or evidence packets. Accordingly, this analysis uses the number of electronic and paper filings by DHS as a proxy for those by the respondents and their representatives since EOIR does not have similar data for that population but would expect the percentage of paper and electronic to be the same for both.

7.   See EOIR, Statistics Yearbook: Fiscal Year 2018, Aug. 30, 2019, available at https://www.justice.gov/​eoir/​file/​1198896/​download. As with the immigration courts, the Department uses the number of cases filed at the BIA as a proxy for the number of filings at the BIA because the Department does not have specific data regarding the number of individual filings by the parties.

8.  852 filings * $18.85 average FedEx cost + 1,703 filings * $13.34 average USPS cost.

9.  103,920 filings * $18.85 average FedEx cost.

10.  207,841 filings * $13.34 average USPS cost.

11.  $14.72 in May 2018 is equivalent to $14.13 in December 2016.

12.  U.S. Bureau of Labor Statistics, Occupational Employment Statistics: Occupational Employment and Wages, May 2018: 23-1011 Lawyers, available at https://www.bls.gov/​oes/​2018/​may/​oes231011.htm (last visited Mar. 1, 2021) (stating the mean hourly wage in May 2018 was $69.34). $69.34 in May 2018 is equivalent to $66.54 in December 2016.

13.  This calculation further assumes that the filings would require one hour of time by the attorney or courier.

14.  426 filings * $18.85 average FedEx cost.

15.  852 filings * $13.34 average USPS cost.

16.  639 filings * $66.54 mean hourly attorney wage.

17.  639 filings * $14.13 mean hourly courier wage.

18.  This chart does not include the USPS rates for zone 9 as there are no immigration court locations in the Republic of Palau, Federated States of Micronesia, and the Republic of the Marshall Islands. See USPS Office of Inspector General, Audit Report Management of Postal Zones 4, Mar. 25, 2020, available at https://www.uspsoig.gov/​sites/​default/​files/​document-library-files/​2020/​19RG009MS000-20.pdf (last visited Aug. 26, 2021).

19.  These rates correspond with the USPS priority mail rates for letters, large envelopes, and parcels that do not exceed one pound.

20.  These rates correspond with the USPS priority mail express rates for letters, large envelopes, and parcels that do not exceed 0.5 pound.

21.  These rates correspond with the USPS first class package service rates for retail parcels that do not exceed one ounce.

22.  Due to the current outbreak of COVID-19, many immigration judges have adopted standing orders allowing practitioners to appear by telephone without the need for filing a motion. See EOIR Policy Manual, Part II, Ch. 14.1, available at https://www.justice.gov/​eoir/​eoir-policy-manual/​ii/​14/​1 (last updated Jan. 13, 2021); EOIR, Operational Status Map, available at https://www.justice.gov/​eoir-operational-status/​operational-status-map (providing standing orders for each immigration court). Although EOIR cannot predict how long such standing orders will remain in effect, it reiterates that nothing in this proposed rule precludes a law school clinic from filing a motion for a telephonic appearance in order to reduce the need for in-person appearances.

23.  Although most law school clinics and similar programs only take cases at immigration courts that are located in nearby geographic proximity, both to minimize operational and logistical difficulties and to avoid the complications of complying with practice rules for different state jurisdictions, EOIR also recognizes that there may be unique situations in which a law school clinic takes a case that requires atypical travel arrangements. In that situation, coupled with the similarly unique situation of an unsupervised law student appearing alone on behalf of a respondent, EOIR acknowledges there may be an increase in cost associated with this rule because it would require the supervisor to accompany the student to those courts, but the benefit of the rule outweighs any cost associated with this highly unlikely situation. In addition, the final rule has been modified to allow law students and law graduates to appear from locations separate from their supervisor with the adjudicator's permission, which would diminish the potential for the scenario described. See 8 CFR 1292.1(a)(2)(iv).