Download - EXHIBIT A - Northwest Immigrant Rights Project · 2017-07-21 · Representatives (with full accreditation) must first update their address in eRegistry before filing a Form EOIR-27

EXHIBIT A

Case 2:17-cv-00716-RAJ Document 47-1 Filed 06/26/17 of 3

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

OMB#1125-0005 Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals

(Type or Print) NAME AND ADDRESS OF REPRESENTED PARTY

____________________________________________________(First) (Middle Initial) (Last)

____________________________________________________(Number and Street) (Apt. No.)

____________________________________________________(City) (State) (Zip Code)

ALIEN (“A”) NUMBER (Provide A- number of the party represented or the visa beneficiary in this case.)

_______________________________

USCIS Visa Appeal (Provide beneficiary name)

______________________

Fine (Provide fine number)

______________________

Disciplinary case (Provide docket number)

______________________

Attorney or Representative (please check one of the following): I am an attorney eligible to practice law in, and a member in good standing of, the bar of the highest court(s) of the following states(s), possession(s), territory(ies), commonwealth(s), or the District of Columbia (use additional space on reverse side if necessary) and I am not subject to any order disbarring, suspending, enjoining, restraining or otherwise restricting me in the practice of law in any jurisdiction (if subject to such an order, do not check this box and explain on reverse).

Full Name of Court __________________________________ Bar Number (if applicable) __________________________ I am a representative accredited to appear before the Executive Office for Immigration Review as defined in 8 C.F.R. § 1292.1(a)(4) with the following recognized organization: ____________________________________________________________________I am a law student or law graduate of an accredited U.S. law school as defined in 8 C.F.R. § 1292.1(a)(2). I am a reputable individual as defined in 8 C.F.R. § 1292.1(a)(3). I am an accredited foreign government official, as defined in 8 C.F.R. § 1291.1(a)(5), from _____________________ (country). I am a person who was authorized to practice on December 23, 1952, under 8 C.F.R. § 1292.1(b).

Attorney or Representative (please check one of the following):

I hereby enter my appearance as attorney or representative for, and at the request of, the party named above. EOIR has ordered the provision of a Qualified Representative for the party named above and I appear in that capacity.

I have read and understand the statements provided on the reverse side of this form that set forth the regulations and conditions governing appearances and representations before the Board of Immigration Appeals. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. SIGNATURE OF ATTORNEY OR REPRESENTATIVE EOIR ID NUMBER DATE

X __________________________________________________________________________________________________

NAME OF ATTORNEY OR REPRESENTATIVE, ADDRESS, FAX & PHONE NUMBERS, & EMAIL ADDRESS

Name: ____________________________________________________________________________________________________ (First) (Middle Initial) (Last)

Address: __________________________________________________________________________________________________ (Number and Street)

__________________________________________________________________________________________________ (City) (State) (Zip Code)

Telephone: _________________ Facsimile: _________________ Email: ______________________________________________

Check here if new address

Form EOIR - 27 Rev. July 2015


Indicate Type of Appearance:

Primary Attorney/Representative Non-Primary Attorney/Representative

I am providing pro bono representation. Check one: yes no

Proof of Service

I (Name) _____________________________ mailed or delivered a copy of this Form EOIR-27 on (Date) __________________ to the DHS (U.S. Immigration and Customs Enforcement – ICE) at ______________________________________________

DHS (U.S. Citizenship and Immigration Services – USCIS) at _____________________________________________ EOIR Disciplinary Counsel at _______________________________________________________________________

X ___________________________________________________________Signature of Person Serving

APPEARANCES - An appearance for each represented party shall be filed on a separate Form EOIR-27 by the attorney or representative appearing in each appeal or motion to reopen or motion to reconsider before the Board of Immigration Appeals (see 8 C.F.R. § 1003.38(g)), even though the attorney or representative may have appeared in the case before the Immigration Judge or the U.S. Citizenship and Immigration Services. If information is omitted from the Form EOIR-27 or it is not properly completed, the appearance may not be recognized and the accompanying filing may be rejected. When an appearance is made by a person acting in a representative capacity, his/her personal appearance or signature constitutes a representation that, under the provisions in 8 C.F.R. part 1003, he/she is authorized and qualified to represent individuals and will comply with the EOIR Rules of Professional Conduct in 8 C.F.R. § 1003.102. Thereafter, substitution or withdrawal may be permitted upon approval by the Board of a request of the attorney or representative of record in accordance with Matter of Rosales, 19 I&N Dec. 655 (1988). Please note that appearances for limited purposes are not permitted. See Matter of Velasquez, 19 I&N Dec. 377, 384 (BIA 1986). Attorneys and Accredited Representatives (with full accreditation) must first update their address in eRegistry before filing a Form EOIR-27 that reflects a new address.

FREEDOM OF INFORMATION ACT - This form may not be used to request records under the Freedom of Information Act or the Privacy Act. The manner of requesting such records is in 28 C.F.R. §§ 16.1-16.11 and appendices. For further information about requesting records from EOIR under the Freedom of Information Act, see How to File a Freedom of Information Act (FOIA) Request With the Executive Office for Immigration Review, available on EOIR's website at http://www.justice.gov/eoir.

PRIVACY ACT NOTICE - The information requested on this form is authorized by 8 U.S.C. § 1362 and 8 C.F.R. § 1003.3 in order to enter an appearance to represent a party before the Board of Immigration Appeals. The information you provide is mandatory and required to enter an appearance. Failure to provide the requested information will result in an inability to represent a party or receive notice of actions in a proceeding. EOIR may share this information with others in accordance with approved routine uses described in EOIR's system of records notice, EOIR-001, Records and Management Information System, 69 Fed. Reg. 26,179 (May 11, 2004), or its successors and EOIR-003, Practitioner Complaint-Disciplinary Files, 64 Fed. Reg. 49237 (September 1999).

CASES BEFORE EOIR - Automated information about cases before EOIR is available by calling (800) 898-7180 or (240) 314-1500.

ADDITIONAL INFORMATION:

Under the Paperwork Reduction Act, a person is not required to respond to a collection of information unless it displays a valid OMB control number. We try to create forms and instructions that are accurate, can be easily understood, and which impose the least possible burden on you to provide us with information. The estimated average time to complete this form is six (6) minutes. If you have comments regarding the accuracy of this estimate, or suggestions for making this form simpler, you can write to the Executive Office for Immigration Review, Office of the General Counsel, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041.

Form EOIR - 27 Rev. July 2015


EXHIBIT B

Case 2:17-cv-00716-RAJ Document 47-2 Filed 06/26/17 Page 1 of 3

U.S. Department of Justice Executive Office for Immigration Review Immigration Court

OMB#1125-0006 Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court

(Type or Print) NAME AND ADDRESS OF REPRESENTED PARTY

______________________________________________________ (First) (Middle Initial) (Last)

______________________________________________________ (Number and Street) (Apt. No.)

______________________________________________________ (City) (State) (Zip Code)

ALIEN (“A”) NUMBER (Provide A-number of the party represented in this case.)

Entry of appearance for (please check one of the following):

All proceedings

Custody and bond proceedings only

All proceedings other than custody and bond proceedings

Attorney or Representative (please check one of the following): I am an attorney eligible to practice law in, and a member in good standing of, the bar of the highest court(s) of the following states(s), possession(s), territory(ies), commonwealth(s), or the District of Columbia (use additional space on reverse side if necessary) and I am not subject to any order disbarring, suspending, enjoining, restraining or otherwise restricting me in the practice of law in any jurisdiction (if subject to such an order, do not check this box and explain on reverse).

Full Name of Court __________________________________ Bar Number (if applicable) __________________________ I am a representative accredited to appear before the Executive Office for Immigration Review as defined in 8 C.F.R. § 1292.1(a)(4) with the following recognized organization: ____________________________________________________________________I am a law student or law graduate of an accredited U.S. law school as defined in 8 C.F.R. § 1292.1(a)(2). I am a reputable individual as defined in 8 C.F.R. § 1292.1(a)(3). I am an accredited foreign government official, as defined in 8 C.F.R. § 1291.1(a)(5), from _____________________ (country). I am a person who was authorized to practice on December 23, 1952, under 8 C.F.R. § 1292.1(b).

Attorney or Representative (please check one of the following):

I hereby enter my appearance as attorney or representative for, and at the request of, the party named above. EOIR has ordered the provision of a Qualified Representative for the party named above and I appear in that capacity.

I have read and understand the statements provided on the reverse side of this form that set forth the regulations and conditions governing appearances and representations before the Immigration Court. By signing this form, I consent to publication of my name and any findings of misconduct by EOIR, should I become subject to any public discipline by EOIR pursuant to the rules and procedures at 8 C.F.R. 1003.101 et seq. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. SIGNATURE OF ATTORNEY OR REPRESENTATIVE EOIR ID NUMBER DATE

X __________________________________________________________________________________________________

NAME OF ATTORNEY OR REPRESENTATIVE, ADDRESS, FAX & PHONE NUMBERS, & EMAIL ADDRESS

Name: ____________________________________________________________________________________________________ (First) (Middle Initial) (Last)

Address: __________________________________________________________________________________________________ (Number and Street)

__________________________________________________________________________________________________ (City) (State) (Zip Code)

Telephone: _________________ Facsimile: _________________ Email: ______________________________________________

Check here if new address

Form EOIR - 28 Rev. Dec. 2015


Indicate Type of Appearance:

Primary Attorney/Representative Non-Primary Attorney/Representative

On behalf of ______________________________ (Attorney’s Name) for the following hearing: _________________ (Date)

I am providing pro bono representation. Check one: yes no

Proof of Service

I (Name) _____________________________ mailed or delivered a copy of this Form EOIR-28 on (Date) __________________ to the DHS (U.S. Immigration and Customs Enforcement – ICE) at _________________________________________________

X ___________________________________________________________Signature of Person Serving

APPEARANCES - An attorney or Accredited Representative (with full accreditation) must register with the EOIR eRegistry in order to practice before the Immigration Court (see 8 C.F.R. § 1292.1(f)). Registration must be completed online on the EOIR website at www.justice.gov/eoir. An appearance shall be filed on a Form EOIR-28 by the attorney or representative appearing in each case before an Immigration Judge (see 8 C.F.R. § 1003.17). A Form EOIR-28 shall be filed either as an electronic form, or as a paper form, as appropriate (for further information, please see the Immigration Court Practice Manual, which is available on the EOIR website at www.justice.gov/eoir). The attorney or representative must check the box indicating whether the entry of appearance is for custody and bond proceedings only, for all proceedings other than custody and bond, or for all proceedings including custody and bond. When an appearance is made by a person acting in a representative capacity, his/her personal appearance or signature constitutes a representation that, under the provisions of 8 C.F.R. part 1003, he/she is authorized and qualified to represent individuals and will comply with the EOIR Rules of Professional Conduct in 8 C.F.R. § 1003.102. Thereafter, substitution or withdrawal may be permitted upon the approval of the Immigration Judge of a request by the attorney or representative of record in accordance with 8 C.F.R. § 1003.17(b). Please note that although separate appearances in custody and non-custody proceedings are permitted, appearances for limited purposes within those proceedings are not permitted. See Matter of Velasquez, 19 I&N Dec. 377, 384 (BIA 1986). A separate appearance form (Form EOIR-27) must be filed with an appeal to the Board of Immigration Appeals (see 8 C.F.R. § 1003.38(g)). Attorneys and Accredited Representatives (with full accreditation) must first update their address in eRegistry before filing a Form EOIR-28 that reflects a new address. FREEDOM OF INFORMATION ACT - This form may not be used to request records under the Freedom of Information Act or the Privacy Act. The manner of requesting such records is in 28 C.F.R. §§ 16.1-16.11 and appendices. For further information about requesting records from EOIR under the Freedom of Information Act, see How to File a Freedom of Information Act (FOIA) Request With the Executive Office for Immigration Review, available on EOIR's website at http://www.justice.gov/eoir. PRIVACY ACT NOTICE - The information requested on this form is authorized by 8 U.S.C. §§ 1229(a), 1362 and 8 C.F.R. § 1003.17 in order to enter an appearance to represent a party before the Immigration Court. The information you provide is mandatory and required to enter an appearance. Failure to provide the requested information will result in an inability to represent a party or receive notice of actions in a proceeding. EOIR may share this information with others in accordance with approved routine uses described in EOIR's system of records notice, EOIR-001, Records and Management Information System, 69 Fed. Reg. 26,179 (May 11, 2004), or its successors and EOIR-003, Practitioner Complaint-Disciplinary Files, 64 Fed. Reg. 49237 (September 1999). Furthermore, the submission of this form acknowledges that an attorney or representative will be subject to the disciplinary rules and procedures at 8 C.F.R. 1003.101et seq., including, pursuant to 8 C.F.R. §§ 292.3(h)(3), 1003.108(c), publication of the name of the attorney or representative and findings of misconduct should the attorney or representative be subject to any public discipline by EOIR. CASES BEFORE EOIR - Automated information about cases before EOIR is available by calling (800) 898-7180 or (240) 314-1500. FURTHER INFORMATION - For further information, please see the Immigration Court Practice Manual, which is available on the EOIR website at www.justice.gov/eoir. ADDITIONAL INFORMATION:

Under the Paperwork Reduction Act, a person is not required to respond to a collection of information unless it displays a valid OMB control number. We try to create forms and instructions that are accurate, can be easily understood, and which impose the least possible burden on you to provide us with information. The estimated average time to complete this form is six (6) minutes. If you have comments regarding the accuracy of this estimate, or suggestions for making this form simpler, you can write to the Executive Office for Immigration Review, Office of the General Counsel, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22041.

Form EOIR - 28 Rev. Dec. 2015


EXHIBIT C


May 2, 2017 Jennifer J. Barnes Disciplinary Counsel Executive Office for Immigration Review 5017 Pike, Ste. 2600 Falls Church, VA 22041 VIA email: [email protected] RE: Northwest Immigrant Rights Project D2017-0104 Dear Ms. Barnes: I am writing on behalf of Northwest Immigrant Rights Project (NWIRP) in response to your letter directed to my attention, dated April 5, 2017. Your letter advises you have concluded that “NWIRP’s practice of representing aliens before [the Executive Office for Immigration Review (EOIR)] without filing the appropriate Notice of Entry of Appearance form is in violation of federal regulations.” Accordingly, your letter instructs that “NWIRP cease and desist from representing aliens unless and until the appropriate Notice of Entry of Appearance form is filed with each client that NWIRP represents.” This determination, and the instructions to “cease and desist” representing persons in removal proceedings without filing a Notice of Entry of Appearance form is a drastic change in application of the regulations and has immediately and significantly harmed NWIRP’s work and mission, as it prevents NWIRP attorneys from advocating on behalf of unrepresented persons in removal proceedings unless NWIRP has the resources to take on full representation of their cases before the Immigration Court or the Board of Immigration Appeals. Given NWIRP’s limited resources to provide full representation to persons in removal proceedings, and given that there are over a thousand unrepresented individuals currently in removal proceedings before the Seattle and Tacoma immigration courts, the immediate effect of your instructions to “cease and desist” will be that NWIRP will have to stop


providing limited legal assistance to hundreds of indigent persons who are unrepresented in removal proceedings. As you are aware, EOIR does not permit persons to file a notice of entry of appearance for discrete, or limited services, with the one exception allowing for entry of appearance to represent a person solely in a bond or custody hearing. See Separate Representation for Custody and Bond Proceedings, Final Rule, 80 Fed. Reg. 59500-59502 (Oct. 1, 2015) (amending 8 C.F.R. § 1003.17). At the same time, NWIRP is the only organization listed in EOIR’s List of Pro Bono Legal Services that provides assistance to adult individuals facing removal proceedings in the Tacoma and Seattle immigration courts. Thus, the practical effect of your instruction for NWIRP to cease and desist providing limited legal services means that hundreds of indigent persons who are unrepresented in removal proceedings will be deprived of any legal assistance in such crucial activities as, inter alia, filling out and submitting asylum applications prior to the one year deadline; filling out other applications for relief such as cancellation of removal (all of which must be completed in English); filing motions to change venue from other states to the Seattle Immigration Court in order to ensure that persons living in Washington State are not ordered removed in absentia for hearings that were originally scheduled on the southern border and in other parts of the United States; and motions to reopen removal orders so that persons can apply for relief for which they may be entitled. Just in the past two weeks since receiving your letter we have had to change our practice with three unrelated persons who had appointments scheduled for us to assist them in filling out and submitting their applications for political asylum before the one-year filing deadline. All three were within ten days of forfeiting their right to apply for asylum under 8 U.S.C. 1158(b)(2) if they did not submit a completed application to the Court. Individuals facing removal proceedings often come to us in such circumstances, before we can make a determination of whether we will be able to take on their cases for full representation before the immigration court. Last year alone our office screened over five hundred asylum applicants. We certainly believe that all of these individuals should be entitled to full representation during their removal hearings. Unfortunately, that is not the reality that NWIRP and nonprofit legal services throughout the country operate in: we simply do not have the resources to provide full representation to even one third of those seeking asylum before the courts in our region. Moreover, as you are aware, persons in removal proceedings are required to file all applications, motions, supporting documents and briefs in English or with an English translation, 8 C.F.R. § 1003.33, yet EOIR provides no assistance in filling out applications, motions or briefs, and provides no language assistance in translating documents or interpreting forms. In addition, applicants for asylum and other forms of relief often suffer drastic consequences if their applications are not completed by attorneys or fully accredited representatives thoroughly familiar with the law, and the responses do not focus on the required legal elements for establishing eligibility for relief. Case law is replete with examples of persons being


denied relief because the Immigration Judge found that their responses in the application forms focused on irrelevant facts or failed to provide additional facts that corresponded to the requisite elements. If pro se individuals are deprived of even limited legal services such as assistance in preparing applications and submitting motions to change venue or to reopen, they often have virtually no opportunity to present their case. In addition, by requiring that NWIRP advocates submit a Notice of Entry of Appearance form in order to provide representation, as defined under 8 C.F.R. 1001.1(i), (j), (k), your instructions threaten to prevent our attorneys from even screening pro se individuals to help them identify defenses and forms of relief that they may raise before the Immigration Court. An integral part of NWIRP’s mission is to advocate for immigrants in Washington State by providing legal advice with respect to their constitutional and statutory rights. NWIRP attorneys have a First Amendment right to conduct such advocacy, meeting with pro se persons in removal proceedings, analyzing the facts of their case, the applicable laws, and providing them with the advice and tools they need to exercise their constitutional and statutory rights in removal proceedings. NWIRP attorneys also have the right to act, consistent with the State Rules of Professional Responsibility, in engaging in pre-representation screenings and to confine their representation as agreed upon by the client and the attorney, at any point before needing to file a notice of appearance. Your instructions to cease and desist interfere with our First Amendment rights to carry out our mission, at the expense of hundreds of indigent persons who do not have the resources to retain an attorney to defend them in removal proceedings. Moreover, apart from providing advice and assistance with the related applications, motions, briefing and support packets, the individual consultations are essential for screening unrepresented individuals for potential placement with pro bono attorneys. In the first four months of 2017 NWIRP has already placed seventy three cases of persons in removal proceedings with pro bono attorneys for full representation. By asserting that NWIRP may not provide representation as defined in the above referenced regulations without filing a Notice of Entry of Appearance form, your office is preventing NWIRP advocates from evaluating and screening cases in order to place pro se individuals with pro bono attorneys, or decline representation if appropriate. Moreover, your cease and desist letter prevents attorneys from exercising their basic rights to consult with potential clients, or to work with clients in the way and within the scope agreed to by the attorney and the client. In sum, your instructions that NWIRP cease and desist providing limited legal representation to pro se individuals in removal proceedings are a significant shift in the application of the regulations and have caused substantial and immediate harm to NWIRP and the hundreds of pro se persons NWIRP assists. On behalf of NWIRP, I respectfully request that you retract your cease and desist letter by 5:00p.m. PDT on Thursday, May 4, 2017, so that NWIRP may continue with its mission to advocate for


the constitutional and statutory rights of immigrants in Washington State. Given the urgency of the matter, I would ask that you send us your response via email to [email protected]. Thank you for your attention in this important matter. Sincerely,

Matt Adams Matt Adams Legal Director Northwest Immigrant Rights Project


mailto:[email protected]

EXHIBIT D


Case 2:17-cv-00716-RAJ Document 48 Filed 06/26/17 Page 1 of 4

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

NORTHWEST IMMIGRANT RIGHTS PROJECT (“NWIRP”), a nonprofit Washington public benefit corporation; and YUK MAN MAGGIE CHENG, an individual,

Plaintiffs, v. JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; JAMES MCHENRY,1 in his official capacity as Acting Director of the Executive Office for Immigration Review; and JENNIFER BARNES, in her official capacity as Disciplinary Counsel for the Executive Office for Immigration Review,

Defendants.

CASE NO. 2:17-cv-00716

DECLARATION OF JENNIFER BARNES

I, JENNIFER BARNES, Disciplinary Counsel for the U.S. Department of Justice, Executive Office for Immigration Review (“EOIR”), Office of the General Counsel, in Falls Church,

1Under Federal Rule of Civil Procedure 25(d), current Acting Director of EOIR James McHenry is substituted for former Director Juan Osuna.


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Virginia, do hereby declare under penalty of perjury that the following statements are true and correct to the best of my knowledge, information, and belief:

1. I am the Disciplinary Counsel for EOIR. I have served in this role for

approximately seventeen years, since July 2000. The regulations governing the role of the

Disciplinary Counsel, and the rules and procedures for disciplinary proceedings, are set forth at 8

C.F.R. part 1003, subpart G. These regulations were substantively amended, most recently on

December 18, 2008, see 73 FR 76914, with the revisions taking effect on January 20, 2009.2

Prior to that, the authorities of the Disciplinary Counsel were reserved generally to the EOIR

Office of the General Counsel, and I exercised those authorities under the internal title “Bar

Counsel.”

2. I am the first, and to date the only, individual who has the ultimate responsibility

for exercising these authorities as Disciplinary Counsel. Presently, no other individual within

EOIR exercises this authority as the Disciplinary Counsel. Throughout this declaration, when I

refer to actions I took as Disciplinary Counsel, it can be assumed that no one else at EOIR has

taken those actions as the Disciplinary Counsel since July 2000 when I assumed the role of Bar

Counsel, and presently, Disciplinary Counsel.

Role and Duties of EOIR Disciplinary Counsel

3. In my role as Disciplinary Counsel, I oversee the investigation of complaints

involving alleged misconduct by practitioners before EOIR’s immigration courts and the Board of

Immigration Appeals (“the Board”) to determine whether an attorney or representative has

engaged in criminal, unethical, or unprofessional conduct, or in frivolous behavior. My role is

analogous to that of a state bar prosecutor in that I am tasked by EOIR with investigating alleged

misconduct and determining whether to dismiss complaints, to resolve complaints informally

through confidential discipline, or to institute formal disciplinary proceedings.

4. In my role as Disciplinary Counsel, pursuant to 8 C.F.R. § 1003.104(b), I may

investigate professional misconduct based on complaints from immigration judges, the Board,

other state or federal agencies, or the public, or on my own initiative. In practice, I rarely initiate

an investigation without first receiving a complaint from an immigration judge, the Board, other

state or federal agencies, or the public. The vast majority of meritorious complaints of practitioner

2 Prior to that, these regulations were substantively amended on June 27, 2000. See 65 FR 39513.


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misconduct referred to me come from immigration judges and the Board. See Peter Markowitz,

Barriers To Representation For Detained Immigrants Facing Deportation: Varick Street

Detention Facility, A Case Study, 78 Fordham L. Rev. 541, 563 (2009) (“immigration judges . . .

are in many ways best positioned to identify incompetent lawyering”). Immigration judges

typically report unethical or unprofessional conduct, or frivolous behavior that they have observed

in their courtrooms or in documents filed with the court, and the Board typically reports the same

type of misconduct that is observed in filings made with the Board.

5. In practice, I typically focus my investigations, issue informal confidential

discipline, and/or initiate formal disciplinary proceedings for conduct taken by an individual

practitioner before the immigration courts or the Board—i.e. during an in-person appearance

before the immigration courts or the Board, or when a practitioner has signed and completed a

Notice of Entry of Appearance form but fails to appear for a scheduled hearing, or when a

practitioner has drafted a document ultimately filed with the immigration courts or the Board.

Evidence of conduct beyond these parameters is difficult for me to prove and generally is not the

goal of EOIR’s Attorney Discipline program.

6. In my role as Disciplinary Counsel, I have the authority to informally resolve

complaints without the initiation of formal disciplinary proceedings through the issuance of

confidential discipline, pursuant to 8 C.F.R. § 1003.104(c). Informal confidential discipline may

be in the form of a warning letter or informal admonition, or an agreement with the practitioner in

lieu of discipline, and is confidential pursuant to 8 C.F.R. § 1003.108(b).

7. In my role as Disciplinary Counsel, I do not have the authority to impose formal

sanctions for violations of the professional conduct rules. Instead, pursuant to regulation,

adjudicating officials and the Board have the authority to impose formal disciplinary sanctions

upon any practitioner for a finding that he or she has violated the rules of professional conduct “if

it is in the public interest to do so,” e.g. for criminal, unethical or unprofessional conduct, or

frivolous behavior, as set forth in 8 C.F.R. § 1003.102. As described in 8 C.F.R. § 1003.101(a),

formal sanctions can include disbarment, suspension, private or public censure, or such other

disciplinary sanctions as deemed appropriate.

8. In my role as Disciplinary Counsel, I do not have authority to investigate

disciplinary proceedings with respect to any conduct that takes place before the Department of

Homeland Security (“DHS”); however, I may refer any complaint I receive about such conduct to


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the Disciplinary Counsel for DHS. Additionally, I may join a prosecution initiated by the DHS

Disciplinary Counsel so that any sanction that prohibits a practitioner from practice before DHS

would equally prohibit the practitioner from practice before the immigration courts and the Board.

8 C.F.R. §§ 1003.110(c), 1003.105(b).

9. I also coordinate with EOIR’s Fraud and Abuse Prevention Counsel regarding the

discipline of attorneys or accredited representatives who commit, enable, or induce fraud. See 8

C.F.R. § 1003.0(e)(2) (directing EOIR’s anti-fraud officer to “[s]erve as a point of contact relating

to concerns about possible fraud,” "[c]oordinate with investigative authorities,” and “[n]otify the

EOIR disciplinary counsel and other appropriate authorities with respect to instances of fraud,

misrepresentation, or abuse pertaining to an attorney or accredited representative.”). If a complaint

I receive contains allegations of fraud and/or the unauthorized practice of law, I coordinate

handling of the complaint with the Fraud and Abuse Prevention Counsel to assess whether

individuals are in fact practitioners subject to the EOIR Rules of Professional Conduct, and in light

of potential criminal investigations that the Fraud and Abuse Prevention Program might assist.

Procedures and Practices of EOIR Disciplinary Enforcement

10. As Disciplinary Counsel, I manage the Attorney Discipline Program, and am

assisted by: the Assistant Disciplinary Counsel; another attorney who spends part of her time

working in the Attorney Discipline Program; an investigator; and other support staff. I maintain

ultimate authority on behalf of EOIR to investigate complaints of practitioner misconduct, dismiss

those complaints, issue informal confidential discipline, and/or institute formal disciplinary

proceedings.

11. As Disciplinary Counsel, I oversee the receipt of hundreds of complaints of

misconduct each year, with the number of complaints rising in recent years. For example, in

calendar year 2015, EOIR received over 400 complaints of practitioner misconduct; in calendar

year 2016, EOIR received approximately 600 complaints; and as of May 31, 2017, EOIR has

received nearly 400 complaints in calendar year 2017. When a complaint is received, with the

assistance of my staff, I log the complaint into a database, and then I conduct a case-by-case

preliminary inquiry into each complaint. Upon conclusion of the preliminary inquiry, I determine

whether to dismiss the complaint, refer the complaint to another regulatory agency or state bar


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authorities,3 issue informal confidential discipline, reach some other form of resolution, institute

formal disciplinary proceedings and/or resolve the issue in some other manner. See 8 C.F.R. §

1003.104(c) (“disciplinary counsel, in its discretion, may issue warning letters”) (emphasis added);

see also 8 C.F.R. § 1003.105(a) (explaining that formal disciplinary charges may be initiated if

there is “sufficient prima facie evidence to warrant charging.”).

12. A complaint may merit the issuance of informal confidential discipline only if there

is clear and convincing evidence of a violation of the EOIR rules of professional conduct. I

consider this discipline to be “informal” because these matters are resolved without the initiation

of formal disciplinary proceedings and without formal sanctions to the practitioner, and the final

action is confidential pursuant to 8 C.F.R. § 1003.108(b).

13. In my discretion, I may initiate formal disciplinary proceedings if after a

preliminary inquiry, there is sufficient prima facie evidence of professional misconduct. Such

formal proceedings would be adjudicated before the Board and/or an adjudicating official.

14. If a complaint does not merit disciplinary action, I dismiss it. When a complaint is

dismissed, it means that there is no action taken against the practitioner. Dismissals also remain

confidential.

15. In light of the volume of complaints received each year, and the Attorney Discipline

Program’s resources, I generally begin review of a complaint in the order that it is received. For

example, it has generally been the Attorney Discipline Program’s practice to review a complaint

received on January 1 before reviewing a complaint received on February 1.

16. However, a number of factors may affect when I complete the review and take

action on a complaint, if necessary. For example, a complaint may be closed earlier or later,

depending on the nature and length of an investigation and preliminary inquiry. Moreover, alleged

violations of certain rules of professional conduct may require more expeditious review due to the

nature of the violation. In my discretion, the alleged violations that are reviewed more

expeditiously are violations of: § 1003.102(g) (contempt of court through contumelious or

3 In fact, I have worked closely with the Washington State Bar Association, including their disciplinary counsel, through both in-person presentations and numerous phone conversations, to coordinate efforts to regulate Washington State attorneys who also practice before EOIR. On numerous occasions, for example, I have instituted reciprocal disciplinary action on behalf of EOIR when the Washington State Bar Association has suspended or disbarred attorneys from the practice of law in the state of Washington. See, e.g., Matter of Grosvenor Anschell, D2000-097 (BIA Dec. 21, 2000), available at https://www.justice.gov/sites/default/files/eoir/legacy/2014/02/03/Anschell_FinalOrder.pdf; In re Disciplinary

Proceeding Against Anschell, 69 P.3d 844 (Wash. 2003).


https://www.justice.gov/sites/default/files/eoir/legacy/2014/02/03/Anschell_FinalOrder.pdf

6

obnoxious conduct); § 1003.102(l) (repeated failures to appear for scheduled hearings); and §

1003.102(t) (failure to submit signed and completed Notice of Entry of Appearance form). I strive

to complete review of alleged violations of these rules promptly upon receiving them – instead of

in the order that they are received – because in my view, the conduct should be addressed

immediately (rather than months later) so that it does not re-occur. For example, practitioners who

fail to appear for scheduled hearings in a timely manner without good cause should be put on

notice sooner rather than later that such misconduct is not acceptable and that the practitioner

should appear in the future for all scheduled hearings, absent an emergency. Informing a

practitioner about an obligation to appear for a scheduled hearing or to sign and file a Notice of

Entry Appearance form several months or even a year after the conduct occurred would not be an

effective way to curb the conduct and change behavior. Moreover, it is important to try and resolve

this type of misconduct sooner rather than later because repeated failures to appear interfere with

the timely adjudication of immigration cases, potentially contributing to the backlog of cases in

immigration court. Additionally, regarding § 1003.102(l) and § 1003.102(t) specifically, the facts

alleged in the complaint usually describe conduct that may be determined to constitute a violation

of the applicable rule without the need for further investigation.

17. When a complaint appears to demonstrate prima facie evidence of a violation of

EOIR’s rules of professional conduct, my staff or I usually send a confidential “inquiry letter” to

the practitioner. This letter informs the practitioner of the complaint, and describes the conduct

at issue and the rule(s) of professional conduct that are alleged to have been violated. The inquiry

letter is comprised of information from the complaint and information gathered through our

investigation, which most often includes a review of the EOIR record of proceedings. The inquiry

letter informs the practitioner that, at the time of issuing the letter, I have not taken any formal

position regarding the validity of the allegations. The practitioner is given at least 30 days to

respond to the inquiry letter and to provide an explanation, if any, for the conduct at issue. If the

practitioner responds, and provides an explanation that shows that he or she has not violated

EOIR’s rules of professional conduct as alleged, I will dismiss the complaint or dismiss the

complaint with a warning. However, if the practitioner’s response does not provide an explanation

that excuses the conduct constituting the violation – or if the practitioner does not respond at all –

I may issue informal confidential discipline or initiate formal disciplinary proceedings.


7

18. Informal confidential discipline, whether in the form of a warning letter or informal

admonition, provides the practitioner with a description of the conduct that is the subject of the

complaint, a summary of the practitioner’s response to such conduct, if any, and an analysis of

why the conduct is a violation of the rules of professional conduct. The goal is to caution the

practitioner that his or her conduct was in violation of the rules of professional conduct in the hope

that the practitioner changes his or her practices and does not repeat the conduct. This type of

discipline is informal and does not result in any formal sanction to the practitioner. Besides

dismissals, informal confidential discipline is the most common way in which a complaint is

closed.

19. In some instances, a complaint may merit informal confidential discipline in the

first instance without sending an inquiry letter to the practitioner. These cases are rare and are

limited to circumstances in which I find that the facts as alleged in the complaint are confirmed as

true so no further investigation is necessary. In such instances, no preliminary inquiry is needed

because the facts “speak for themselves.” Additionally and importantly, however, issuance of such

informal confidential discipline by itself will not result in any formal sanction to the practitioner

as described in 8 C.F.R. § 1003.101(a).

20. In some cases when informal confidential discipline is issued, my letter may contain

the statement that the practitioner “cease and desist” from a certain practice because it is or may

be – if continued in a pattern or practice of activity – a violation of the rules of professional

conduct. Such a statement is consistent with the cautionary statements I make in warning letters

and admonitions so that the practitioner is aware of conduct that needs to be changed in order to

avoid violating the rules of professional conduct and the initiation of formal disciplinary

proceedings in the future.

21. I may also enter into an agreement with the practitioner in lieu of discipline. These

types of agreements are instituted in limited circumstances in cases when the practitioner admits

that he or she has engaged in professional misconduct and is seeking to avoid the initiation of

formal disciplinary proceedings. For example, such agreements have been used to require

practitioners to return unearned fees to clients. The scope of such an agreement is fashioned in

my discretion as Disciplinary Counsel. See 8 C.F.R. § 1003.104(c).


8

22. Formal disciplinary proceedings4 are instituted when I determine that “sufficient

prima facie evidence exists to warrant charging a practitioner with professional misconduct.” 8

C.F.R. § 1003.105(a). As a general matter, largely due to resource concerns, formal disciplinary

proceedings are initiated infrequently and limited to conduct that is egregious, conduct that is

repeated despite prior informal confidential discipline, and/or conduct that is the subject of

multiple complaints. To institute formal disciplinary proceedings, I file a Notice of Intent to

Discipline (“NID”) with the Board and serve it on the practitioner. The NID contains a statement

of the charge(s), a proposed sanction, and a copy of the preliminary inquiry report. The practitioner

must file a timely answer to the NID or the Board will enter a default order. If a practitioner files

an answer to the NID, then EOIR will appoint an adjudicating official from a specially trained

corps of immigration judges to hear and decide the case. The adjudicating official and/or the Board

will make a finding as to whether the practitioner has violated the rules of professional conduct

and will make a determination on the appropriate sanction.

23. Since I began serving in the role of Disciplinary Counsel for EOIR (previously

known as “Bar Counsel”) in July 2000, I have been solely responsible in my capacity as

Disciplinary Counsel for all decisions with regard to investigating complaints, dismissing

complaints, issuing informal confidential discipline, and instituting formal disciplinary

proceedings. While immigration judges or Board members acting as administrative officials are

tasked with determining whether disciplinary sanctions should be imposed once formal

disciplinary proceedings have been initiated, no other EOIR employee or entity within the agency

has been given authority to determine the scope of investigation and initiation of charges under

the applicable regulations.

24. No Department of Justice official outside of EOIR has dictated the manner in which

I, as EOIR Disciplinary Counsel, take action under the disciplinary regulations, including 8 C.F.R.

§ 1003.102(t) or any other disciplinary rule.

25. I have never spoken to any Department of Justice official outside of EOIR about

this case or the letter I sent to Northwest Immigrant Rights Project (“NWIRP”) on April 5, 2017.

4 When someone has been convicted of a serious crime or has been suspended or disbarred by a state bar or federal court, for example, I initiate formal, streamlined proceedings, as provided by regulation, to seek an immediate sanction. See 8 C.F.R. § 1003.103.


9

26. I have never spoken to President Donald Trump or his White House staff about this

case, the letter I sent to NWIRP on April 5, 2017, or for any other reason.

27. I have never spoken to Attorney General Jefferson B. Sessions, III about this case,

the letter I sent to NWIRP on April 5, 2017, or for any other reason.

Importance of 8 C.F.R. § 1003.102(t)

28. The twenty-one grounds for misconduct that constitute chargeable disciplinary

conduct are listed at 8 C.F.R. § 1003.102.5 These chargeable grounds were expanded by EOIR’s

December 18, 2008 rulemaking, “Professional Conduct for Practitioners – Rules and Procedures,”

73 FR 76914, which became effective on January 20, 2009.

29. 8 C.F.R. § 1003.102(t), added by EOIR’s 2008 rulemaking, defines as misconduct

the failure to “submit a signed and completed Notice of Entry of Appearance as Attorney or

Representative in compliance with applicable rules and regulations when the practitioner: (1) Has

engaged in practice or preparation as those terms are defined in 1003.1(i) and (k), and, (2) Has

been deemed to have engaged in a pattern and practice of failing to submit such forms, in

compliance with applicable rules and regulations. Notwithstanding the foregoing, in each case

where the respondent is represented, every pleading, application, motion or other filing shall be

signed by the practitioner of record in his or her individual name[.]”

30. The purposes and guiding principles behind the enforcement of 8 C.F.R. §

1003.102(t) were succinctly stated in the supplementary information to the proposed and final rules

that promulgated it.

5 These grounds of misconduct are charging or receiving grossly excessive fees, § 1003.102(a); bribery or coercion, § 1003.102(b); false or misleading statements or evidence, § 1003.102(c); soliciting clients for money, § 1003.102(d); practicing while disbarred or suspended by a state bar or a federal court, § 1003.102(e); a false or misleading statement about qualifications, § 1003.102(f); contempt of court through contumelious or obnoxious conduct, § 1003.102(g); conviction of a serious crime, § 1003.102(h); false certification of a document, § 1003.102(i); frivolous behavior, § 1003.102(j); ineffective assistance of counsel, § 1003.102(k); repeated failures to appear in court, § 1003.102(l); assistance in unauthorized practice of law, § 1003.102(m); conduct prejudicial to the administration of justice, § 1003.102(n); incompetence, § 1003.102(o); failure to abide by the client’s decision as to the scope of representation, § 1003.102(p); lack of diligence, § 1003.102(q); failure to communicate with a client, § 1003.102(r); failure to disclose adverse legal authority, § 1003.102(s); failure to submit a signed notice of appearance or sign a filing, § 1003.102(t); and boilerplate filings, § 1003.102(u).


10

31. In the proposed rule, the Department stated that 8 C.F.R. § 1003.102(t) was

patterned after the language of Rule 11 of the Federal Rules of Civil Procedure. Section

1003.102(t) was “intended to address the growing problem of practitioners who seek to avoid the

responsibilities of formal representation by routinely failing to submit the required notice of entry

of appearance forms” and the attendant “difficulties in pursuing a practitioner for discipline for

participating in the preparation of false or misleading documents are apparent when the practitioner

fails to submit a completed notice of entry of appearance form.” The Department concluded that

the goals of § 1003.102(t) would be “accountability for the preparer and presenter of documents

that are submitted to the government and the elimination of fraudulent practices that undermine a

client’s ability to seek recourse against a practitioner when the practitioner fails to formally

acknowledge representation and subsequently provides ineffective assistance of counsel or

otherwise engages in misconduct.” See 73 FR 44183.

32. Similarly, in the final rule, the Department asserted: “The Department believes that

all practitioners should submit Forms EOIR-27 and EOIR-28, and sign all filings made with EOIR,

in cases where practitioners engage in “practice” or “preparation” as those words are defined in 8

CFR 1001.1(i) and (k). It is appropriate to require practitioners who engage in “practice” and

“preparation,” whether it is for a fee or on a bro bono basis, to enter a notice of appearance and

sign any filings submitted to EOIR. As stated in the supplemental information to the proposed

rule, this provision is meant to advance the level of professional conduct in immigration

proceedings and foster increased transparency in the client-practitioner relationship. Any

practitioner who accepts responsibility for rendering immigration-related services to a client

should be held accountable for his or her own actions, including the loss of the privilege of practice

before EOIR, when such conduct fails to meet the minimum standards of professional conduct in

8 CFR 1003.102. It is difficult for EOIR to enforce those standards when practitioners fail to enter

a notice of appearance or sign filings made with EOIR.” 73 Fed. Reg. 76,914, 76,919 (Dec. 18,

2008).

33. 8 C.F.R. § 1003.102(t) is essential to my ability to discipline practitioners because

practitioners’ compliance with § 1003.102(t) allows me to identify practitioners who commit

misconduct, as embodied in the twenty other charges described in § 1003.102. Put differently,

when an individual practitioner fails to enter a notice of appearance or sign a document, it is

difficult – and in some cases, impossible – for me to determine who engaged in the alleged


11

misconduct, and thus, it is difficult to take further action or initiate formal discipline. In fact, if

there are no other indicators in the record that can lead me to a specific individual who might have

prepared the document, these cases have to be dismissed because I don’t know to whom to write.

34. For example, when a motion or brief is signed and filed by the alien pro se but it

appears as if the motion or brief was clearly drafted by an unidentified individual with a legal

background, it is hard to identify that drafter unless there is evidence in the record that points to

that drafter, such as an envelope containing a return address or a signed proof of service. Even

then, after investigation of a return address, it may be difficult to take further action or initiate

formal discipline if the attorney denies involvement, given the high standard of “clear and

convincing evidence.” See e.g. Exhibit 1; Exhibit 2. And, while some drafters will sign an

accompanying proof of service, see e.g. Exhibit 3, many will not in order to hide their identity.

35. Additionally and importantly, I use identifying information on a Notice of Entry of

Appearance form to check against any relevant state bar information, as necessary, in order to

determine if a practitioner is under any orders of discipline by state bar regulators, or if an

individual may be engaging in the unauthorized practice of law.

36. In these ways, the ability to identify practitioners enables me to enforce EOIR’s

professional conduct rules and has facilitated the reporting of misconduct to me.

37. Moreover, in my seventeen years as Disciplinary Counsel, I have been made aware

from complaints received of the problems in the immigration field associated with “ghostwriting,”

i.e. individuals who engage in the practice of drafting documents for pro se individuals, but fail to

sign the documents or enter a Notice of Entry of Appearance in their name as the actual drafter of

the document. I believe that many of these individuals do so in order to evade responsibility for

their actions and that such actions risk harming vulnerable pro se immigrant respondents. For

example, I am aware based upon internal discussions with EOIR’s Fraud and Abuse Prevention

Counsel, and with individuals from the immigration courts and the Board that ghostwriting can

harm pro se individuals when the drafted document includes incorrect or false information about

an individual’s case or is a “boilerplate” document that does not address the particular facts of the

individual’s case. Such conduct may cause an individual to squander his or her one opportunity

to file a motion to reopen or appeal as of right. See e.g. Exhibit 1; Exhibit 2; Exhibit 4. In some

instances, such practitioners are notarios, or, individuals engaging in the unauthorized practice of

law. Given these potential harms, I believe that my ability to enforce 8 C.F.R. § 1003.102(t) deters


12

some of these individuals from ghostwriting motions, briefs and other documents because they

know that they are required to identify themselves to EOIR under this provision.

38. For these reasons, if I am unable to enforce § 1003.102(t), not only may

practitioners escape any consequences for their misconduct, but immigrant respondents will be

exposed to irreparable harm by individuals who are not authorized by federal regulation to practice

immigration law in the first place.

39. Relatedly, I have concerns about the harms that can result when practitioners take

action on behalf of a respondent in a limited capacity, instead of entering an appearance. For

example, while separate appearances are permitted for bond and removal proceedings,

immigration judges have informed me that clients often do not understand the concept of separate

appearances. Clients are confused when a practitioner who represented them in a bond proceeding

does not appear on their behalf in their removal proceedings because the practitioner only entered

an appearance for the bond proceedings. In these circumstances, immigration judges have

indicated that if they are unsure whether a respondent is in fact represented – based upon statements

by a respondent to the effect that they were represented by counsel at some point or that they

thought the practitioner would represent them for their entire case – judges will likely continue the

hearing to allow the respondent time to locate his or her attorney, resulting in a further delay of

the immigration proceedings. If practitioners were permitted to appear in a more limited capacity

than allowed under current regulations without other safeguards in place, I believe that the

confusion that clients have now and the delays in the ability to complete immigration proceedings

in a timely manner will be compounded. Entering an appearance not only allows me to identify

responsible practitioners, but it makes the existence of an attorney-client relationship more

transparent and aids in the proper functioning of the courts.

Past Enforcement of 8 C.F.R. § 1003.102(t)

40. In practice, EOIR, through the Attorney Discipline Program, has taken action with

respect to alleged violators of 8 C.F.R. § 1003.102(t) in the same manner that it takes action with

respect to any alleged violator of the professional conduct rules set out at 8 C.F.R. § 1003.102. I

have not and do not single out or target individual practitioners, nonprofit organizations,

nongovernmental organizations, or any type of law firms for enforcement. I am not aware of any

informal or formal policy or guidance regarding the targeting of enforcement of charges under 8


13

C.F.R. § 1003.102 against certain practitioners, or types of practitioners, or practitioners employed

by certain organizations or law firms, or types of organizations or law firms.

41. Instead, in practice I enforce 8 C.F.R. § 1003.102(t) against alleged violators as I

enforce all other charges under § 1003.102. As complaints are submitted to me in my role as

Disciplinary Counsel that may implicate conduct described in § 1003.102 (and in conjunction with

the action described in paragraph 15), I evaluate whether the conduct alleged constitutes a violation

or violations under § 1003.102. I consider whether a violation has been committed even if the

individual who is the subject of the complaint has not previously, or is not currently, engaged in

other unethical behavior or professional misconduct.

42. Like with any other alleged violation of the rules of professional conduct, the

conduct alleged in a complaint that may implicate § 1003.102(t) is reviewed to determine if there

is clear and convincing evidence of a violation. In practice, the following conduct has been

identified as a possible violation of § 1003.102(t): failure to personally sign and file a complete

and accurate Notice of Entry of Appearance, and/or failure to sign a motion, brief or other

document ultimately filed before an immigration court or the Board.

43. Since 8 C.F.R. § 1003.102(t) became effective on January 20, 2009, in my role as

Disciplinary Counsel, I have issued 31 letters that EOIR has located based on complaints or other

information received, including the letter sent to Matt Adams on behalf of NWIRP on April 5,

2017, that address a possible violation of § 1003.102(t). Regardless of whether these letters

dismissed the complaint or found the complaint was substantiated, the letters have included a

warning or cautionary statement that the particular individual’s conduct may be in violation of 8

C.F.R. § 1003.102(t) for the particular type of conduct described in the paragraph above. That

cautionary statement may be about the obligation to file a Notice of Entry of Appearance, the

obligation to sign filings that the practitioner drafted, or the obligation to sign and file a complete

and accurate Notice of Entry of Appearance, or a combination of these obligations.

44. In the cases in which the practitioners have not entered a Notice of Entry of

Appearance or otherwise identified themselves, the conduct involved the drafting of documents

including, but not limited to: a motion to reopen, a motion to reconsider, a motion for stay of

removal, a motion for extension of time to file a brief, or a combination of these documents, and

in each instance, the document(s) was filed with an immigration judge or the Board. In the

instances where a pro se respondent signed the documents, it appeared highly unlikely that the


14

drafter of the document was actually the pro se individual who signed the document. See e.g.

Exhibit 5; Exhibit 6. The document will have citations to legal authority, application of facts to

law, and/or legal arguments that most likely could not have been written by a pro se respondent.

45. In order to identify the true drafter of the document, I attempt to locate identifying

information attached to or in the motion or brief itself – such as a name on the certificate of service,

an address on letterhead or an envelope attached to the motion or brief, or a notation of a

practitioner who previously entered an appearance in the respondent’s case during a different stage

of the proceedings. See e.g. Exhibit 3. I address the confidential letter to the practitioner who can

most reasonably be identified as the presumed drafter of the motion, brief or other document based

on the circumstantial evidence. In some of these cases, the evidence was sufficient to find that the

practitioner drafted the document or the practitioner admitted to drafting the document, but in other

cases, the evidence did not result in such a finding despite my suspicions. In most cases of the

above conduct regarding the signing, completing, and filing of a Notice of Entry of Appearance, I

cannot find clear and convincing evidence of a violation of § 1003.102(t) because there is no

evidence of a “pattern or practice” of such conduct. However, even though I may not find a

violation of § 1003.102(t), I still write to the practitioner and/or remind him of the requirement. I

caution the practitioner about the obligation to enter a signed and completed Notice of Entry of

Appearance when engaging in conduct that constitutes “practice” or “preparation” or to “cease and

desist” from engaging in conduct that constitutes “practice” or “preparation” without filing a

Notice of Entry of Appearance. Such reminders and cautionary statements are even made when

that particular conduct relating to § 1003.102(t) was raised in response to other alleged misconduct

conduct by the practitioner that was the primary focus of our investigation.

46. In my role as Disciplinary Counsel, I have never taken any disciplinary action

against an individual when an individual has failed to sign, complete, and file a Notice of Entry of

Appearance form in conjunction with any of the following conduct: provision of general

information about the immigration court system; interviews with or screening of potential clients;

individual consultations to review facts of a particular person’s case; conducting community

workshops or “Know Your Rights” presentations; or merely assisting with the completion of “fill-

in-the blank” forms. Additionally, I consulted on the July 11, 2011 memorandum by Steven Lang,

Program Director of the Office of Legal Access Programs, regarding the definition of

“representation” in 8 C.F.R. §§ 1.1(m), 1001.1(m)—which, like 8 C.F.R. § 1003.102(t)(1), cross-


15

references the terms “practice” and “preparation” as defined in 8 C.F.R. § 1.1(i), (k), and §

1001.1(i), (k), respectively. I consider the activities identified as not “representation” in that

memorandum as activities that would not trigger disciplinary action, whether informal confidential

discipline or the initiation of formal disciplinary proceedings.

47. In my role as Disciplinary Counsel, I have never instituted formal discipline – i.e.,

the issuing of a NID as described above – for an alleged violation of 8 C.F.R. § 1003.102(t). No

individual has been formally sanctioned for this conduct.

48. The limited number of enforcement actions taken under § 1003.102(t) since the

regulation became effective on January 20, 2009 does not support the conclusion that there has

been a change in EOIR’s practice of enforcing § 1003.102(t). Rather, my practice of enforcing

102(t) since January 20, 2009 has been the same. See e.g. Exhibit 7 and compare with Exhibit 10.

First, the practice of entering a Notice of Entry of Appearance is a regular and routine activity that

most practitioners perform without difficulty because they readily agree to accept responsibility

for their work. Second, and most relevant to these proceedings, practitioners and notarios who

want to avoid identification and accountability for their work can often do so because it is

extremely difficult for EOIR to successfully investigate, identify, and take action under §

1003.102(t) when a practitioner or notario does not expose identifying information that could be

discovered. See e.g. Exhibit 1; Exhibit 2.

Letter of April 5, 2017 to NWIRP regarding 8 C.F.R. § 1003.102(t)

49. In October 2016, Brea Burgie, the EOIR Fraud Abuse and Prevention Counsel, and

I had a phone conversation with representatives from NWIRP regarding the application of

1003.102(t) and how it applied to NWIRP. On that call, NWIRP raised the question of their

compliance with 1003.102(t), given that they were a “recognized organization” by the Board.6 I

explained that even competent attorneys can make mistakes, and as such, 1003.102(t) must be

applied uniformly to all immigration practitioners – regardless of who employs them – when they

6 NWIRP stated that because they were a “recognized organization” by the Board, their organization had already been “vetted” and should, thus, be exempt from the requirement to file a Notice of Entry of Appearance form in certain circumstances. However, even if NWIRP is a recognized organization, such organizations, and particularly the practitioners thereof, are still subject to the same rules of professional conduct as other practitioners. See 8 C.F.R. 1003.101(b). Being a recognized organization confers no other status than the ability to provide immigration legal services through non-attorneys who they sponsor for accreditation.


16

fail to sign and file a Notice of Entry of Appearance form when filing legal documents. I offered

my assistance to have NWIRP call me in the future if they had any question or needed guidance

with regard to this rule.

50. On November 1, 2016, the Court Administrator for the Tacoma Immigration Court,

Edwin Lopez, wrote to the EOIR Fraud and Abuse Prevention Counsel, Brea Burgie, about a

potential fraud. See Exhibit 8. Mr. Lopez stated that the respondent’s signatures on documents in

his criminal proceedings differed from his signatures on his pro se motion to reopen in his removal

proceedings. Mr. Lopez stated that an immigration judge suspected that NWIRP may have been

involved in the possible fraud because NWIRP indicated on the pro se motion to reopen that it

provided assistance to the respondent. Ms. Burgie forwarded this complaint to me because it

concerned a possible violation of 8 C.F.R. § 1003.102(t), since no practitioner from NWIRP had

signed the motion to reopen or entered a Notice of Entry of Appearance.

51. On January 5, 2017, I received a complaint from Immigration Judge Brett Parchert

at the Seattle Immigration Court about a possible violation of 8 C.F.R. § 1003.102(t) by NWIRP.

Judge Parchert stated in his complaint: “I have a case where an alien and her children were ordered

removed in absentia. She has filed a pro se motion to reopen. However, the motion states it is

being filed with the assistance of the Northwest Immigrant Rights Project and it included an I-589

drafted by NWIRP. Yet, no one from NWIRP has entered a Notice of Appearance. I know there

is an ethical prohibition in the regs about acting as a lawyer but not filing an E-28.” See Exhibit

9.

52. Upon completion of a preliminary inquiry into both complaints, I issued the April

5, 2017 confidential discipline letter to Matt Adams on behalf of NWIRP for conduct arising under

§ 1003.102(t). Consistent with the other letters described above that I issued for conduct that may

violate § 1003.102(t), the letter warned NWIRP that an individual(s) at NWIRP may have violated

8 C.F.R. § 1003.102(t) when he or she drafted two motions to reopen, one with an asylum

application attached, but had not signed, completed and filed a Notice of Entry of Appearance

form in conjunction with the filing of the motions before EOIR’s immigration courts and had not

signed the motions to reopen as the drafter of such motions. The letter also noted that the

respondent’s “signature on his Motion to Reopen appears to be inconsistent with his signature on

December 21, 2015, requesting a custody redetermination by an Immigration Judge. This

difference could indicate that someone other than [the respondent] drafted his motion to reopen.”


17

53. The letter issued to Matt Adams on behalf of NWIRP on April 5, 2017 was

confidential discipline. It simply warned practitioners at NWIRP that they must enter a signed

and completed Notice of Entry of Appearance form before drafting a motion, brief or other

document on behalf of an immigrant respondent, and that if such practice resulted in a “pattern”

of not signing and completing a Notice of Appearance form, formal discipline – such as sanctions

– could result. It did not result in any sanctions to any NWIRP practitioner.

54. The letter sent to NWIRP on April 5, 2017 was addressed to Matt Adams, the Legal

Director for NWIRP, because the identifying information that I could glean from the notations on

the two motions to reopen clearly indicated that someone at NWIRP had drafted the motions.

Because Matt Adams is the Legal Director of NWIRP, I determined that he was the most

appropriate individual to receive the letter given that the particular individual practitioner

responsible for drafting the motions could not be identified from the motions. If the identity of the

practitioner from NWIRP who drafted the motions could have been ascertained from the

documents, I would have written the letter directly to that practitioner, as I have done in other

similar cases.

55. I addressed the letter to Matt Adams on behalf of NWIRP not because I was seeking

to enforce the regulation against NWIRP in its capacity as an organization,7 but because the

conduct of NWIRP’s staff became known to EOIR through the respondents’ notation of NWIRP’s

organizational name on both motions to reopen, without identifying an individual by name.

56. As described above in paragraph 49, in past discussions with NWIRP, NWIRP has

suggested that nonprofit organizations, such as NWIRP, be given leave to file written documents

with the immigration courts and the Board without signing, completing and filing a Notice of Entry

of Appearance form, so long as there is a notation indicating that their organization has provided

assistance in drafting and filing the document. However, such suggestion is unenforceable under

EOIR’s current rules of professional conduct.8

7 Separately, “recognized organizations”—i.e. nonprofit organizations which sponsor non-lawyer professionals to represent individuals in immigration proceedings (formally, “accredited representatives”)—can be subject to disciplinary sanctions that affect its ability to sponsor accredited representatives. See 8 C.F.R. § 1003.110. While as Disciplinary Counsel, I have authority to initiate disciplinary proceedings for that purpose, see 8 C.F.R. § 1003.110(c), I did not send the April 5, 2017 letter to NWIRP for that purpose. The April 5, 2017 letter does not mention 8 C.F.R. § 1003.110. 8 See n.6, supra.


Exhibit 1


Exhibit 2


Exhibit 3


Exhibit 4


Exhibit 5


Exhibit 6


Exhibit 7


Exhibit 8


Exhibit 9


From: Parchert, Brett (EOIR)To: Barnes, Jennifer (EOIR)Subject: questionDate: Thursday, January 05, 2017 3:48:04 PM

Happy New Year Jenni, I have a question: I have a case where an alien and her children were ordered removed in absentia. She has filed a “pro se” motion to reopen. However, the motion states that it is being filed with theassistance of the Northwest Immigrants Rights Project and it included an I-589 drafted by NWIRP.Yet, no one from NWIRP has entered a Notice of Appearance. I know there is an ethical prohibitionin the regs about acting as a lawyer but not filing an E-28. Are there different rules for immigrants’rights groups?? Brett


Exhibit 10


1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

NORTHWEST IMMIGRANT RIGHTS PROJECT (“NWIRP”), a nonprofit Washington public benefit corporation; and YUK MAN MAGGIE CHENG, an individual,

Plaintiffs, v. JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; JAMES MCHENRY,1 in his official capacity as Acting Director of the Executive Office for Immigration Review; and JENNIFER BARNES, in her official capacity as Disciplinary Counsel for the Executive Office for Immigration Review,

Defendants.

CASE NO. 2:17-cv-00716

DECLARATION OF STEVEN LANG

I, STEVEN LANG, Program Director of the Office of Legal Access Programs (“OLAP”) for the U.S. Department of Justice, Executive Office for Immigration Review (“EOIR”), in Falls Church, Virginia, do hereby declare under penalty of perjury that the following statements are true and correct to the best of my knowledge, information, and belief:

1Under Federal Rule of Civil Procedure 25(d), current Acting Director of EOIR James McHenry is substituted for former Director Juan Osuna.


2

1. I am the Program Director of the Office of Legal Access Programs (“OLAP”)

within the Executive Office for Immigration Review (“EOIR”) in the Department of Justice

(“DOJ”).

2. I have been OLAP Program Director since 2012. Prior to that, I served as the

Coordinator of the EOIR Legal Orientation and Pro Bono Program since 2003, and as the

Coordinator of the EOIR Pro Bono Program since April 2000. From May 1997 until February

2000, I served as the Attorney Coordinator of the American Bar Association’s South Texas Pro

Bono Asylum Representation Project (ProBAR) in Harlingen, Texas. Prior to ProBAR, and

since May 1994, I was in private practice in Houston, and was active in several pro bono efforts.

3. As OLAP Program Director, I manage the various programs and initiatives of

OLAP, consisting of the Legal Orientation Program (LOP), Legal Orientation Program for

Custodians (LOPC) of Unaccompanied Alien Children, Immigration Court Helpdesk (ICH),

Self-Help Legal Centers, Model Hearing Program, National Qualified Representative Program,

Recognition and Accreditation Program, List of Pro Bono Legal Service Providers, BIA Pro

Bono Project, and other initiatives aimed to increase access to information and raise the level of

representation for individuals appearing before the immigration courts and Board of Immigration

Appeals. OLAP also provides technical advice and support to both immigration court staff and

pro bono groups and other legal service providers to facilitate efforts to increase access to legal

services for low income and indigent individuals. See https://www.justice.gov/eoir/office-of-

legal-access-programs.

4. I have personal knowledge of the facts stated in this declaration and am

competent to testify to the same.


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Overview

5. EOIR has increasingly encouraged and facilitated the provision of qualified and

responsible legal assistance to low income and indigent immigrant respondents before the

immigration courts and the Board of Immigration Appeals (“BIA” or “Board”). EOIR primarily

does this through OLAP. See 8 C.F.R. § 1003.0(f).

6. OLAP’s mission has long been to increase access to information and raise the

level of representation for individuals appearing before the immigration courts and Board of

Immigration Appeals (BIA). See https://www.justice.gov/eoir/office-of-legal-access-programs.

7. Raising the level of representation before the immigration courts and BIA means

increasing both the availability and quality of that representation. The problem is “two-fold,” as

Second Circuit Judge Robert Katzmann described.2

8. Increasing the availability of representation is vitally important. There is a critical

and ongoing shortage of qualified legal representation for underserved populations in

immigration cases before federal administrative agencies. See, e.g., 80 FR 59514, 59429 (Oct. 1,

2015); 81 FR 92358 (Dec. 19, 2016).

9. As described below, OLAP has taken significant steps to address this shortage

through a number of initiatives: by reforming the Recognition and Accreditation Program to

authorize greater numbers of non-attorney professionals to represent indigent and low income

immigrants through recognized nonprofit organizations; creating and overseeing the National

Qualified Representative Program (“NQRP”), which appoints counsel to represent detainees with

serious mental disorders or defects in removal proceedings; and facilitating the expansion of pro

bono representation through reforming the List of Pro Bono Legal Service Providers (which is

2 See Robert A. Katzmann, Innovative Approaches to Immigrant Representation: Exploring New Partnerships, 33 Cardozo L. Rev. 331, 332 (2011).


https://www.justice.gov/eoir/office-of-legal-access-programs

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given to every individual in immigration court proceedings), creating and overseeing the BIA

Pro Bono Project, and promoting best practices (such as those included under the immigration

courts’ 2008 “Guidelines for Facilitating Pro Bono Legal Services”) with immigration court staff

and pro bono groups. Additionally, in 2014, with strong support from OLAP, EOIR made

regulatory changes to allow for separate appearances (a.k.a. “limited representation”) in the

specific context of custody and bond proceedings to encourage more attorneys and accredited

representatives to represent respondents in those specific proceedings.

10. However, it is equally important to ensure the quality of representation for

underserved populations in immigration cases. The historical problem of poor quality of

representation in immigration courts and before the BIA; the particular vulnerability of

immigrant populations, particularly low-income and/or limited English proficiency individuals;

and the legal, financial, and emotional harm and exploitation perpetrated by notarios and other

unauthorized individuals against vulnerable immigrant populations are all well-documented.

11. Accordingly, as EOIR has worked to increase the availability of representation for

underserved populations in immigration cases, EOIR has also made certain that its initiatives at

the same time raise the quality of representation provided. For example, as described below, the

recently-implemented regulations governing the OLAP Recognition and Accreditation Program

were designed not only to increase the capacity of current and new organizations to provide

representation to low income and indigent individuals, but also to strengthen EOIR’s oversight of

these organizations and their accredited representatives that provide representation, to ensure that

qualified individuals are accredited and that once accredited, they continue to meet the standards

for accreditation and EOIR professional conduct rules. In addition, EOIR has promulgated

safeguards to protect the integrity of OLAP’s List of Pro Bono Legal Service Providers and to


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ensure that practitioners on it comply with EOIR professional conduct rules. Also, EOIR

provides individuals interested in providing pro bono representation with the training and tools

to do so competently and confidently, through initiatives to assist pro bono groups train pro bono

attorneys such as the OLAP Model Hearing Program. And EOIR’s rule that implemented

“limited representation” in the specific context of custody and bond proceedings strengthened

safeguards to ensure disclosure of the scope of representation to immigration court respondents.

12. I describe below my concerns that an extension of the current temporary

restraining order prohibiting enforcement of 8 C.F.R. § 1003.102(t) would harm respondents in

proceedings before the immigration courts and the Board. This is because prohibiting

enforcement of § 1003.102(t) would remove a key mechanism that enables EOIR to hold

accountable attorneys and accredited representatives committing unethical and other

sanctionable acts against vulnerable respondents, by requiring practitioners to identify

themselves and accept responsibility under EOIR’s professional conduct rules, and disallowing

“ghostwriting.”

EOIR’s Efforts to Increase the Availability and Quality of Representation in Immigration Proceedings

Separate Appearances for Custody and Bond Proceedings

13. On October 1, 2015, EOIR promulgated a rulemaking that allowed a form of

“limited representation”—i.e. separate appearances for custody and bond proceedings, as distinct

from an immigration removal proceeding. See 80 FR 59,500 (October 1, 2015) (final rule); 79

FR 55659 (Sept. 17, 2014) (proposed rule); 77 FR 59567 (advance notice of proposed

rulemaking).


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14. Custody and bond proceedings are legally separate and apart from removal and

deportation proceedings under EOIR regulations.3 79 FR 55660, citing 8 CFR 1003.19(d);

Matter of Guerra, 24 I&N Dec 37, 40 n.2 (BIA 2006); Matter of R–S–H-, 23 I&N Dec 629, 630

n.7 (BIA 2003).

15. The rulemaking amended EOIR regulations to allow a representative before EOIR

to enter an appearance in custody and bond proceedings without such appearance constituting an

entry of appearance for all of the individual’s proceedings before the Immigration Court. 80 FR

59,500.

16. The rule was intended to encourage more attorneys and accredited representatives

to agree to represent individuals who would otherwise appear pro se at their custody and bond

proceedings. Id. Statements by public interest groups, such as the American Immigration

Lawyers Association (AILA), and comments received in response to the advance notice of

proposed rulemaking, indicated that increased representation was likely to happen, including by

pro bono counsel. 79 FR 55660.

17. EOIR regulations still require representatives to file a notice of entry of

appearance in a custody and bond proceeding. However, representatives can now indicate

whether they are entering an appearance for custody and bond proceedings only. 79 FR 55660-

61.

18. Multiple rationales for the rule specifically supported limited representation in

separate custody and bond proceedings for detained respondents.

3 Similarly, because an appeal to the Board of Immigration Appeals is also a separate proceeding, a practitioner can file a notice of appearance to the Board without being required to continue representation on remand to immigration court or appeal to the Circuit. See 8 C.F.R. 1003.38(g).


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19. Because custody and bond proceedings are legally separate and apart from

removal and deportation proceedings under EOIR regulations (as noted above), EOIR required a

Notice of Entry of Appearance to be filed separately for different types of proceedings, with a

representative of record required to represent a respondent in all aspects of each separate type of

proceeding, unless the Immigration Court grants a motion to withdraw or substitute counsel. 70

FR 55,660.

20. Additionally, detained respondents were less likely to be represented in

immigration proceedings. 79 FR 55659-60. EOIR found that public benefits of the rule included

“increased representation of detained individuals... the amendment will make it easier for

individuals who may not be able to afford to hire an attorney for all of their proceedings before

the Immigration Court to at least be able to be represented during their custody and bond

proceedings.” 80 FR 59,501.

21. EOIR declined to expand the rule to allow for limited appearances within a

removal proceeding, such as for motions to reopen, motions for change of venue, or motions to

remand. 80 FR 59,500; see also Matter of Velasquez, 19 I&N Dec. 377, 384 (BIA 1986)

(holding that under INS regulations a representative cannot enter a “limited” appearance in

removal proceedings).

22. EOIR noted concerns from commenters that a practitioner adequately explain the

scope of his or her representation to his or her client, and obtained his or her client’s consent to

the limited representation. 80 FR 59,501. EOIR, to ensure that respondents would be aware of

the limited scope of representation, reiterated that a check box on the EOIR-28 requires the

practitioner to attest to the client’s consent, and added language to clarify that EOIR’s


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disciplinary rules and procedures apply to practitioners entering an appearance before EOIR,

including a limited appearance for custody and bond proceedings. Id.

Recognition and Accreditation Program

23. OLAP’s Recognition and Accreditation Program authorizes non-lawyer

representatives of non-profit religious, charitable, social service, or similar organizations to

represent persons in proceedings before EOIR and the Department of Homeland Security

(DHS).4 See https://www.justice.gov/eoir/recognition-and-accreditation-program.

24. As of June 19, 2017, there are 948 recognized organizations, with 1,806

accredited representatives.

25. EOIR recently amended the regulations governing the Recognition and

Accreditation Program in 2016, with the amendments effective on January 18, 2017. 81 Fed.

Reg. 92346 (Dec. 19, 2016) (final rule); 80 Fed. Reg. 59514 (Oct. 1, 2015) (proposed rule); 77

FR 9590 (Feb. 17, 2012) (notice of two public meetings and request for comments).

26. The purpose of EOIR’s rule was twofold—to increase the availability of

representation for immigrants in proceedings, while ensuring the quality of such representation.

27. As EOIR stated, the purpose was “to promote the effective and efficient

administration of justice before . . . EOIR by increasing the availability of competent non-lawyer

representation for underserved immigrant populations”— while balancing “the potential

increased availability of recognized organizations and accredited representatives with greater

oversight and accountability for recognized organizations and accredited representatives.” 80

Fed. Reg. 59514; see also id. at 59616 (stating the “express purpose of increasing capacity while

4 Accreditation of non-lawyers affiliated with organizations to represent respondents in immigration proceedings has existed since the 1950s. See, e.g., 23 FR 2672 (Apr. 23, 1958); 40 FR 23271 (May 19, 1975); 49 FR 44084 (Nov. 2, 1984).


https://www.justice.gov/eoir/recognition-and-accreditation-program

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maintaining adequate standards”). EOIR sought “to increase the availability of qualified

representation for primarily low-income and indigent persons while protecting the public from

fraud and abuse by unscrupulous organizations and individuals.” Id. at 59514.

28. The rule pointed out that “legal, financial, and emotional harm and exploitation

perpetrated by notarios and other unauthorized individuals against vulnerable immigrant

populations is well-documented.” Id. EOIR also stated that its rule would assist federal

interagency, state and local, and private efforts to address notario fraud and the unauthorized

practice of law “by seeking to increase the number of recognized organizations and the

availability of authorized and qualified immigration practitioners for underserved persons,

which, in turn, should reduce the likelihood that such persons become the victims of immigration

scams involving the unauthorized practice of law.” Id. at 59514-15 & ns. 2-5.

29. To accomplish its goals, EOIR’s rule clarified the recognition and accreditation

(“R&A”) application processes, established greater oversight and accountability for recognized

organizations and accredited representatives, and enhanced the management of the R&A roster.

30. Oversight and accountability of recognized organizations and accredited

representatives remains essential. Accredited representatives must be affiliated with a

recognized nonprofit or similar organization.5 See 8 C.F.R. §§ 1292.11, §1292.12. But

regrettably, not all accredited representatives affiliated with recognized nonprofit organizations

provide competent representation, sometimes to the harm of their clients.

31. For example, in 2011, the Board of Immigration Appeals, which previously

oversaw accreditation of representatives, declined to renew the accreditation of Robert “Father

5 Specifically, the organization must be a “non-profit religious, charitable, social service, or similar organization that provides immigration legal services primarily to low-income and indigent clients within the United States, and, if the organization charges fees, has a written policy for accommodating clients unable to pay fees for immigration legal services,” and a “Federal tax-exempt organization established in the United States.” 8 C.F.R. § 1292.11(a).


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Bob” Vitaglione, chairman of the organization Comité Nuestra Senora de Loreto Sobre Asuntos

de Inmigracion Hispana, based in Brooklyn, New York. See In re Reverend Robert Vitaglione

(BIA 2011), attached as Exhibit 1, and available at

https://www.justice.gov/sites/default/files/eoir/legacy/2012/06/12/BIA_decision_5-6-12.pdf.

32. Father Bob had been an accredited representative for decades. However, by 2010,

Father Bob was representing respondents in over 800 cases, and had failed to appear or appeared

unprepared in roughly a third of his non-detained cases in immigration court. The BIA also

found several specific examples of ineffective assistance of counsel.

33. The BIA noted Father Bob’s “good intentions,” and its “respect [for his]

dedication to his vocation.” But, the BIA found that it could not “excuse his failings as an

accredited representative or overlook the impact his performance has had on the low-income and

indigent aliens who have relied upon his services.” And, while the BIA appreciated the “need

for pro bono and low cost representation,” the “potential unavailability of alternate

representation does not relieve Rev. Vitaglione of his responsibility to provide competent

representation in each case he accepts.”

34. Additionally, on March 27, 2017, the Board suspended accredited representative

Gloria Saucedo from practice before DHS. See Exhibit 2, In re Gloria Dora Saucedo, D2016-

0313 (BIA 2017), also available at

https://www.justice.gov/sites/default/files/pages/attachments/2017/03/28/saucedoimmediatesusp

ensionorder.pdf. Saucedo was convicted in a California court for engaging in unauthorized

practice of law for many years, before she became an accredited representative affiliated with

Hermandad Mexicana Transnacional in 2015. Also, on May 24, 2017, OLAP terminated the

accreditation of Ali Paula. See Exhibit 3 (April 20, 2017, letter to Open Arms Community


https://www.justice.gov/sites/default/files/eoir/legacy/2012/06/12/BIA_decision_5-6-12.pdf

https://www.justice.gov/sites/default/files/pages/attachments/2017/03/28/saucedoimmediatesuspensionorder.pdf

https://www.justice.gov/sites/default/files/pages/attachments/2017/03/28/saucedoimmediatesuspensionorder.pdf

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Center); Exhibit 4 (May 24, 2017, letter to Open Arms Community Center terminating

accreditation). Paula was permanently enjoined by the Supreme Court of Florida on October 22,

2015, for engaging in the unlicensed practice of law in Florida, before Paula was approved as an

accredited representative on December 10, 2015. Additionally, OLAP placed Paula’s sponsoring

organization, Open Arms Community Center, on inactive status, since Paula was its only

accredited representative.

35. Cases like Father Bob’s, Gloria Saucedo’s, Ali Paula’s and others show a

compelling need for sufficient oversight of representatives in immigration court and before the

BIA, even those representatives affiliated with nonprofit organizations with a demonstrated

commitment to helping immigrants. Sometimes, representatives lose the capacity to competently

or ethically represent respondents to the detriment of their clients, or are convicted of crimes or

disciplined by state bar authorities.

36. Additionally, the rule updates the disciplinary process to ensure that recognized

organizations, not only their accredited representatives, are subject to disciplinary sanctions for

conduct contrary to the public interest. See 81 FR 92356; 8 C.F.R. § 1292.19

37. For example, in Matter of Baptist Educational Center, 20 I&N Dec. 723 (BIA

1993), the Board withdrew an organization’s recognition because the organization was engaging

in for-profit referrals and fee sharing with private counsel.

Programs to Facilitate Pro Bono Representation

38. List of Pro Bono Legal Service Providers. OLAP administers the List of Pro

Bono Legal Service Providers (the “List”). The List is central to EOIR’s efforts to improve the

level and quality of representation before its adjudicators, and it is an essential tool to inform

individuals in proceedings before EOIR of available pro bono legal services. See

https://www.justice.gov/eoir/list-pro-bono-legal-service-providers.


https://www.justice.gov/eoir/list-pro-bono-legal-service-providers

12

39. The List is provided to all pro se individuals in immigration court proceedings.

The List contains information on recognized non-profit or similar organizations that provide

immigration legal services, other organizations providing pro bono services, pro bono referral

services that refer individuals in immigration court proceedings to pro bono counsel, and private

attorneys who have committed to providing at least 50 hours per year of pro bono legal services

before the immigration court location where they appear on the List, where other organizations

or pro bono referral services are not available. 8 C.F.R. § 1003.62. The List can be found at

https://www.justice.gov/eoir/file/probonofulllist/download.

40. The regulations governing the List “aim to ensure that private attorneys on the

List, and attorneys and accredited representatives who provide pro bono legal services for

organizations on the List, satisfy EOIR's professional conduct standards.”6 79 FR at 55664.

41. To address these concerns, the regulations require pro bono attorneys and

accredited representatives to certify under penalty of perjury that they are not subject to a

disbarment order under § 1003.101(a)(1) or suspension under § 1003.101(a)(2). See 79 FR

55664; 8 CFR §§ 1003.62(a)(3), (b)(4), (d)(1). This practice is consistent with the declarations

under penalty of perjury on EOIR’s notice of appearance forms that the practitioner consents to

EOIR’s professional conduct rules. Id. at 55664.

42. Additionally, concerns had been expressed to the government and by the public

that, for example, attorneys on the List were improperly advertising or soliciting for paying

clients, or were misleading respondents as to their true willingness to provide pro bono services.

79 FR at 55664, 55666. The regulations now include provisions for termination from the pro

bono list for such misconduct. 8 C.F.R. § 1003.65.

6 EOIR’s final rulemaking reiterated that “the existing EOIR disciplinary rules… are applicable to all attorneys and accredited representatives appearing before EOIR on behalf of any client.” 80 FR 59506 n. 8.


https://www.justice.gov/eoir/file/probonofulllist/download

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43. Related to this lawsuit, EOIR’s final rulemaking regarding the List distinguished

attorneys and accredited representatives “who will represent clients pro bono before EOIR,”

from attorneys and accredited representatives “who will not enter appearances with EOIR, but

who will perform [other] pro bono legal services in cases pending before EOIR other than

representing clients,” such as “conducting an intake interview.” 80 FR 59507 & n. 13; 8 CFR §

1003.63(b)(2). This position is consistent with the definition of “representation” before

immigration courts and the Board at 8 C.F.R. §§ 1.1(m) and 1001.1(m), which includes

“practice” and “preparation” as defined in 8 C.F.R. §§ 1.1(i), (k) and 1001.1(i), (k), and my

related 2011 Memorandum analyzing activities provided under the Legal Orientation Program

(LOP) that do not constitute “representation,” provided in this lawsuit at Dkt #14, Ex. B, and

described further below at ¶¶ 66-69. Specifically, this position in EOIR’s rulemaking regarding

the List further supports that conducting an intake interview does not constitute “practice” and

“preparation” as defined in 8 C.F.R. §§ 1001.1(i) and (k), and thus does not trigger a requirement

to file a notice of entry of appearance under 8 C.F.R. § 1003.102(t).

Facilitating Pro Bono Representation in Immigration Court.

44. OLAP plays a key role in facilitating the provision of pro bono representation in

immigration courts around the country.

45. A 2008 memorandum by the Office of the Chief Immigration Judge (“OCIJ”),

Guidelines for Facilitating Pro Bono Legal Services, OPPM 08-01 (March 10, 2008), Exhibit 5,

and available at https://www.justice.gov/sites/default/files/eoir/legacy/2008/04/24/08-01.pdf,

provides guidance on how immigration courts and court administrators can encourage and

facilitate pro bono legal services for respondents.


https://www.justice.gov/sites/default/files/eoir/legacy/2008/04/24/08-01.pdf

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46. As the 2008 memorandum sets out, “[p]ro bono representation benefits both the

respondent and the court, providing respondents with welcome legal assistance and the judge

with efficiencies that can only be realized when the respondent is represented.” OPPM 08-01, at

2.

47. The 2008 memorandum directs the designation of a “pro bono liaison judge” in

each immigration court, who represents the judges of that court in interactions with outside

entities regarding matters involving pro bono representation. OLAP interacts with the pro bono

liaison judges around the country to facilitate the provision of pro bono legal assistance in each

court. Every year, OLAP either meets with the judges as a group, or conducts a series of

conference calls with the pro bono liaison judges in each court in order to familiarize each judge

with their roles and scope of duties in facilitating access to pro bono legal services. One of these

duties is to meet regularly with local pro bono legal service providers to discuss these issues. Id.

at 3.

48. Additionally, the 2008 memorandum sets out guidance to take into account “the

particular needs of pro bono representatives,” including by denoting and tracking their pro bono

appearance, giving pro bono representatives priority scheduling, encouraging flexibility in

appearing by telephone or videoconference, encouraging pre-hearing statements and pre-hearing

conferences, making court records available to pro bono organizations and representatives, and

strongly encouraging the facilitation of pro bono representation whenever minors are involved..

49. The 2008 memorandum also recognizes that while it “is incumbent on every

judge to facilitate pro bono representation,” “[e]qually important, however, is that every judge

must be careful to stay within the bounds of ethics and propriety.” Id. at 6.


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50. Facilitating Pro Bono Representation at the BIA (the BIA Pro Bono Project).

OLAP also administers the BIA Pro Bono Project, which helps to provide pro bono

representation in appropriate cases to respondents with case appeals before the Board. See

https://www.justice.gov/eoir/bia-pro-bono-project.

51. EOIR assists in identifying potentially meritorious case appeals based upon

criteria determined by the partnering volunteer groups. Once cases are identified and reviewed,

their summaries are then distributed via e-mail to pro bono representatives across the United

States. Volunteers who accept a case under the Project receive a copy of the file, as well as

additional time to file the appeal brief.

52. Since its start, the BIA Pro Bono Project has succeeded in securing pro bono

counsel for well over 1,100 individuals around the country.

Model Hearing Program

53. The Model Hearing Program (“MHP”) is an educational program coordinated by

OLAP, to improve the quality of advocacy before the immigration courts, as well as to increase

levels of pro bono representation. See https://www.justice.gov/eoir/model-hearing-program.

54. The program, implemented in 2001, provides hands-on immigration court training

and is designed for attorneys, accredited representatives, law students, and law school graduates

with little or no experience in immigration removal proceedings, who are interested in

representing indigent immigrants on a pro bono basis in the immigration court.

55. OLAP facilitates coordination of the MHP between a sponsoring non-profit

organization and an immigration court, and provides technical assistance where needed.

Substantive training in a specific area of immigration law is provided by the non-profit

organization sponsoring the MHP. This is followed by a model hearing presided over by an

immigration judge from the local immigration court. The in-court model hearing focuses on


https://www.justice.gov/eoir/bia-pro-bono-project

https://www.justice.gov/eoir/model-hearing-program

16

practice, procedure and advocacy skills. Participants commit to a minimal level of pro bono

representation throughout the year, and may receive training materials and CLE credit. Since

2001, there have been well over 100 Model Hearings conducted.

National Qualified Representative Program

56. In April 2013, EOIR collaborated with the Department of Homeland Security’s

Immigration and Customs Enforcement (“ICE”) agency to initiate a new nationwide policy to

provide enhanced procedural protections, including competency inquiries in immigration court,

mental health examinations, and bond hearings to certain unrepresented and detained

respondents with serious mental disorders or conditions that may render them incompetent to

represent themselves in immigration proceedings. See https://www.justice.gov/eoir/national-

qualified-representative-program-nqrp.

57. As part of the Nationwide Policy’s enhanced procedural protections, EOIR

launched the National Qualified Representative Program (“NQRP”), a nationwide program to

provide Qualified Representatives (“QRs”) to certain unrepresented and detained respondents

who are found by an Immigration Judge or the BIA to be mentally incompetent to represent

themselves in immigration proceedings. EOIR carries out the NQRP through a contract with the

Vera Institute of Justice and local subcontracting legal service organizations to provide QRs

where required.

58. The NQRP followed a federal district court ruling, Franco-Gonzalez v. Holder,

2013 WL 3674492 (C.D. Cal. Apr. 23, 2013), which found that the Rehabilitation Act required

the appointment of a qualified representative to detainees determined to be incompetent to

represent themselves due to a serious mental disorder or defect. Since April, 2013, over 800

qualified representatives have been appointed.


https://www.justice.gov/eoir/national-qualified-representative-program-nqrp

https://www.justice.gov/eoir/national-qualified-representative-program-nqrp

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Increasing Access to Legal Information for Pro Se Immigrants

59. OLAP also implements several initiatives to increase access to information for

individuals appearing before the immigration courts and Board of Immigration Appeals (BIA).

These initiatives are described below.

Legal Orientation Program (LOP)

60. Since 2003, OLAP has carried out the Legal Orientation Program (LOP) to

improve judicial efficiency and assist all parties in adult detained removal proceedings –

unrepresented detained adults, the immigration court, Immigration and Customs Enforcement

(ICE) and the detention facility. The LOP currently operates in 39 ICE detention facilities. See

https://www.justice.gov/eoir/legal-orientation-program.

61. Through the LOP, representatives from nonprofit organizations provide

comprehensive explanations about immigration court procedures along with other basic legal

information to large groups of detained individuals

62. The program is normally comprised of four components: (1) Group Orientations,

which provide an interactive general overview of immigration proceedings, individual

responsibilities, and available legal options , and are open to general questions; (2) Individual

Orientations, where unrepresented individuals can briefly discuss their cases with experienced

LOP providers and pose more specific questions; (3) Self-help Workshops, where those

interested in pursuing various legal relief options or those who wish to voluntarily depart the

country, are provided classroom-style training on specific topics (such as how to complete an

asylum application or prepare for a bond hearing), and given self-help legal materials; and (4)

Referral to Pro Bono Legal Services, where available.

63. In 2016, across the United States, the LOP served 42,610 detained individuals in

INA § 240 removal proceedings, and an additional 10,376 individuals in other immigration


https://www.justice.gov/eoir/legal-orientation-program

18

proceedings. Additionally and specifically, 16,094 individuals were provided individual

orientations, 18,744 individuals were provided self-help workshops, and 1,508 individuals were

referred to pro bono legal counsel.

64. Specifically, in the Tacoma Immigration Court, where NWIRP is the sole

provider of the LOP program, the LOP served 2,835 detained individuals in INA § 240 removal

proceedings, and an additional 596 individuals in other immigration proceedings. Additionally

and specifically, 1,468 individuals were provided individual orientations, 126 individuals were

provided self-help workshops, and 142 individuals were referred to pro bono legal counsel.

65. Experience has shown that the LOP has had positive effects on the immigration

court process: detained individuals make more timely and better-informed decisions and are

more likely to obtain representation; non-profit organizations reach a wider audience of people

with minimal resources; and, cases are more likely to be completed faster, resulting in fewer

court hearings and less time spent in detention.

2011 Memorandum Distinguishing Orientation from Representation

66. On July 11, 2011, I issued a memorandum (“2011 Memorandum”), entitled

“Legal Orientation Program: Guidelines—Orientation vs. Representation,” setting forth guidance

in distinguishing between services considered ‘legal representation’ and those considered ‘legal

orientation’ for individuals providing contract services through the LOP.7 This memorandum is

attached as Exhibit 6 (and was previously Exhibit B to Defendant’s Opposition to Plaintiffs’

Motion for Temporary Restraining Order, filed May 11, 2017 (Dkt #14-2, Ex. B)). I issued the

guidance memo to the Vera Institute, EOIR’s contractor for the LOP, with the purpose that Vera

7 The memorandum was issued to Oren Root, Director of the Center on Immigration and Justice at the Vera Institute of Justice. Vera Institute of Justice is the contractor for the Legal Orientation Program, and carries out LOP work through individual task orders issued to subcontractors, such as NWIRP.


19

Institute would incorporate this guidance into their subcontract agreements with local LOP

providers (including NWIRP). I understand that this guidance has been part of every subsequent

LOP subcontract.

67. The 2011 Memorandum is relevant to this lawsuit because it analyzes whether

certain activities fall under the definition of “representation,” see 8 C.F.R. §§ 1.1(m),

1001.1(m)—which, like 8 C.F.R. § 1003.102(t)(1), cross-references the terms “practice” and

“preparation” as defined in 8 C.F.R. § 1.1(i), (k), and § 1001.1(i), (k), respectively.8 Thus,

activities that do not constitute “representation” under 8 C.F.R. § 1.1(m) or § 1001.1(m) should

also not trigger the notice of appearance requirement under 8 C.F.R. § 1003.102(t).

68. In my 2011 Memorandum, I analyzed and set forth a list of activities that did not

constitute “representation.” These activities include:

a. Group orientations. Because a group orientation “is informational and non-

specific to any particular individual’s case,” and “should cover general areas of

law and procedure, and familiarize individuals with their legal rights,

responsibilities and options in general terms,” it is “not considered

representation.” 2011 Memorandum at 2-3.

b. Individual orientations. I concluded that a LOP presenter “may respond to

specific concerns/questions of an individual, generally educating the individual in

law and applicable procedure, as well as in the requirements for pursuing

particular forms of relief,” but should not “give legal advice concerning the

individual’s specific case.” Id. at 3-4. However, I noted that “LOP providers

8 Compare 8 C.F.R. § 1001.1(m) (“The term representation before the Board and the Service includes practice and preparation as defined in paragraphs (i) and (k) of this section.”) with 8 C.F.R. § 1003.102(t) (failure to submit notice of entry of appearance is misconduct “when the practitioner: (1) Has engaged in practice or preparation as those terms are defined in §§ 1001.1(i) and (k)”).


20

should familiarize themselves with their respective State Bar rules regarding

actions which may form the basis of an attorney-client relationship.” Id. at 3 n. 4.

c. Distribution of materials. I concluded that LOP presenters could distribute

materials “relating to how a particular type of legal relief may be pursued, or

standard sample motions and briefs,” but could not perform the “preparation

and/or provision of any case-specific written materials (i.e., those created or

specifically tailored to the individual’s particular circumstances).” Id. at 6.

d. Assistance in obtaining documents. I concluded that "assistance in obtaining

documents does not constitute representation," but such assistance should “only

be provided to unrepresented individuals who have independently determined that

such documents are necessary for their immigration case, and who have made all

diligent efforts to obtain these materials themselves.” Id. at 6-7.

e. Assistance in Completing Legal Forms. I stated that “LOP presenters may assist

unrepresented LOP participants with completing immigration forms,” but

cautioned that “LOP presenters should only provide such services in adherence to

the guidelines” regarding individual orientations, and set forth additional

guidelines, including that a presenter “may not advise the individual on how to

answer a question based on a participant’s particular factual situation and the

applicable law.” Id. at 7.

69. Plaintiffs in this lawsuit, and Plaintiffs’ declarants, allege that many of these

activities described in ¶ 68 trigger the notice of appearance requirement under 8 C.F.R. §

1003.102(t), under what Plaintiffs allege is an “all-or-nothing” or “compulsory representation

rule.” This is misleading and inaccurate. Under the analysis in my 2011 memorandum, these


21

activities described in ¶ 68 that do not constitute “representation” under 8 C.F.R. § 1.1(m) or §

1001.1(m) also should not trigger the notice of appearance requirement under 8 C.F.R. §

1003.102(t).

Legal Orientation Program for Custodians of Unaccompanied Alien Children (LOPC)

70. The Legal Orientation Program for Custodians of Unaccompanied Alien Children

(LOPC) provides legal orientation presentations to the adult caregivers (custodians) of

unaccompanied children in EOIR removal proceedings. See https://www.justice.gov/eoir/legal-

orientation-program-custodians-unaccompanied-alien-children.

71. The purpose of LOPC is to inform the children’s custodians of their

responsibilities in ensuring the child's appearance at all immigration proceedings, as well as

protecting the child from mistreatment, exploitation, and trafficking, as provided under the

Trafficking Victims Protection Reauthorization Act of 2008. EOIR works with the Department

of Health and Human Services, Office of Refugee Resettlement, and non-government partners to

carry out this program nationally.

72. Specifically, the LOPC educates custodians on the immigration court process and

how it works; the importance of the children’s attendance at removal hearings and consequences

of failure to appear; the forms of immigration relief available to children in removal proceedings;

and the custodians’ responsibility to protect the children from mistreatment, exploitation, and

human trafficking.

73. Similar to the LOP, through the LOPC representatives from nonprofit

organizations provide comprehensive explanations about immigration court procedures along

with other basic legal information to groups of individuals made up of custodians, the children in

their care, and other family members. The program is comprised of four components: (1) Group


https://www.justice.gov/eoir/legal-orientation-program-custodians-unaccompanied-alien-children

https://www.justice.gov/eoir/legal-orientation-program-custodians-unaccompanied-alien-children

22

Orientations, (2) Individual Orientations, (3) Self-help Workshops, and (4) Referral to Pro Bono

Legal Services, where available.

74. The LOPC is currently operating in 15 immigration court sites. In FY2016, the

LOPC served the custodians of roughly 20,000 children who were released from federal custody

and scheduled for immigration court hearings. The LOPC also operates the National LOPC Call

Center to provide LOPC scheduling assistance, telephonic orientations, and other basic legal

information to custodians of children who cannot attend a live LOPC.

Immigration Court Help Desk (ICH)

75. OLAP also oversees Immigration Court Helpdesks at immigration court locations

in order to orient non-detained individuals appearing before the immigration court on the

removal hearing process, and provide information to inform them about possible remedies and

legal resources. The ICH provides in-person information sessions, self-help assistance to

individuals without counsel, and information on available pro bono resources to unrepresented

individuals. The ICH was launched in Summer 2016 at five immigration courts: Chicago; Los

Angeles; Miami; New York City; and San Antonio. The self-help assistance provided by the

ICH includes user-friendly legal materials and basic training on self-representation through

group workshops.

Self-Help Legal Centers

76. Self Help Legal Centers, currently in place within 21 immigration courts, provide

general written legal information as well as specific written information about the local

immigration court to pro se respondents and other interested parties. See

https://www.justice.gov/eoir/self-help-materials.

77. The centers provide user-friendly fill in the blank forms, including change of

address and fee waiver forms, as well as self-help packets on various forms of relief, including


https://www.justice.gov/eoir/self-help-materials

23

Asylum, Cancellation Removal, and Voluntary Departure, and answers to frequently asked

questions about the local immigration court.

78. Self-Help Legal Centers can facilitate respondents’ access to legal information,

which in turn can increase court efficiency and improve outcomes in the immigration courts. As

described in EOIR OPPM 08-01, materials provided at Self Help Legal Centers “have the ability

to increase respondents’ understanding of immigration laws, removal proceedings, and the

implications of their pleadings.” Respondents who have access to basic information require less

assistance from court staff and are better prepared when they appear before an immigration

judge. In addition, immigration judges can directly refer unrepresented respondents to the centers

and the respondent can then obtain accurate and helpful information.

Concerns Regarding Temporary Restraining Order

79. As described above, since 2000, EOIR has developed and promoted a variety of

programs and initiatives to assist indigent and low income immigrants with matters before the

agency. Many of these efforts have involved working closely with nonprofit organizations, bar

associations, private attorneys and other entities to help design innovative approaches to expand

access to legal services – everything from basic legal information to intensive pro se assistance

and appointment of legal counsel. Many thousands of individuals are effectively served every

year through self-help/pro se assistance efforts operating in full compliance with federal

regulations.

80. I am concerned that, respectfully, if this Court extended the current temporary

restraining order that prohibits enforcement of 8 C.F.R. § 1003.102(t) into a preliminary

injunction, doing so would harm many immigrants in proceedings before EOIR and the Board.

This is because prohibiting enforcement of § 1003.102(t) would remove a key mechanism that

enables EOIR to hold accountable attorneys and accredited representatives committing unethical


24

and other sanctionable acts against vulnerable respondents, by requiring practitioners to identify

themselves and accept responsibility under EOIR’s professional conduct rules, and disallowing

“ghostwriting.”

81. For example, unscrupulous, unethical, or incompetent practitioners would no

longer be subject to discipline for hiding their identity through the practice of ghostwriting. Such

practitioners could exploit a vulnerable foreign national respondent by charging for unnecessary

and/or frivolous legal services, such as in pursuing legal relief that the immigrant is not eligible

for, or in writing a legal brief that harms rather than helps the client’s interests with little to no

accountability for their actions. I am particularly concerned because ghostwriting is a tool by

which unscrupulous attorneys, so called “jailhouse” lawyers, notarios and others committing the

unauthorized practice of law commonly evade accountability for their actions.

82. Additionally, vulnerable respondents may be confused as to the scope of

representation provided by a practitioner, and then appear at immigration proceedings expecting

a lawyer who does not appear, resulting in the respondent having to proceed without legal

assistance he or she thought would be provided, and additional continuances, delay, or an order

of removal. Or, unscrupulous practitioners may take advantage of that confusion by charging the

immigrant respondent for a full case when the practitioner has no intention of representing the

respondent throughout. Relatedly, such unscrupulous practitioners could hide these activities

from accountability through ghostwriting.

83. Or, practitioners would no longer be required to attest under penalty of perjury

their compliance with EOIR’s professional conduct rules, including rules that require disclosure

of the scope of representation to the respondent. (Notably, when EOIR instituted limited


25

representation in custody and bond proceedings, EOIR added language to this attestation as a

safeguard. 80 FR 59,501.)

84. While most nonprofit organizations like NWIRP are not unscrupulous

organizations, and most nonprofit organizations do not employ unscrupulous practitioners, the

current 8 C.F.R. § 1003.102(t) does not carve out nonprofit organizations or their practitioners

from its coverage. Accordingly, if enforcement of 8 C.F.R. § 1003.102(t) continued to be

enjoined, any practitioner could take advantage of EOIR’s non-enforcement to evade

accountability for his or her actions. In any case, 8 C.F.R. § 1003.102(t) remains essential to

ensure identification of the few practitioners from nonprofit organizations who become

incompetent or unethical, as such practitioners can still have a harmful impact on a large number

of people, as Father Bob had.

85. While EOIR theoretically could engage in rulemaking to extend limited

representation to a single immigration removal proceeding, or distinct phases within it, or carve

out different rules of practice for practitioners affiliated with nonprofit organizations, such

changes should only come about through formal rulemaking. Such changes would raise complex

issues that necessitate safeguards as to the quality of representation.

86. Such a rulemaking, given EOIR’s legitimate concerns about ensuring the quality

of representation in immigration proceedings, would and should necessarily invite and consider

comment from a wide range of stakeholders – including but not limited to nonprofit

organizations – to address appropriate safeguards. Notably, EOIR proposed both its rules for

recognition and accreditation and limited representation in custody and bond proceedings after

EOIR solicited public comments, even before EOIR issued its notices of proposed rulemaking.

See 80 FR 59515 & n. 9 (proposed recognition and accreditation rule), citing 77 FR 9,590 (Feb.


Exhibit 1


Exhibit 2


Exhibit 3


Exhibit 4


Exhibit 5


OPPM 08-01: Guidelines for Facilitating Pro Bono Legal Services page 2

I. Introduction

Pro bono representation benefits both the respondent and the court, providing respondents with welcome legal assistance and the judge with efficiencies that can only be realized when the respondent is represented. A capable pro bono representative can help the respondent navigate court rules and immigration laws and thereby assist the court in understanding the respondent's circumstances and interests in relief, if any is available. Pro bono representation in immigration court thus promotes the effective and efficient administration of justice. This Interim OPPM provides guidance on how immigration courts and court administrators can encourage and facilitate pro bono legal services for respondents.1

II. Meaning of “Pro Bono”

As a general rule, a “pro bono representative” is an attorney or other representative specified in 8 C.F.R. § 1292.1 who provides legal representation without any present or future expectation of remuneration from the respondent (other than filing fees and nominal costs). Uncompensated initial consultations or initial court appearances, with the ultimate intention or goal of compensation by the respondent, are contrary to the spirit of pro bono representation. While an attorney or representative may be regularly compensated by an employing firm or organization, representation should be provided solely and honestly for the public good.

III. Facilitating Pro Bono Representation

A. Pro Bono Liaison Judge and Pro Bono Committee

A judge in each court should be designated the “pro bono liaison judge,” who represents the judges of that court in interactions with outside entities regarding matters involving pro bono representation.

In addition to designating a pro bono liaison judge, courts of appropriate size and location should consider creating a pro bono committee. Committees may include, as appropriate, other judges, the court administrator, attorney advisors, judicial law clerks, and/or other interested court staff. Each court with a pro bono committee should consult its Assistant Chief Immigration Judge (ACIJ) regarding the judge and staff composition of its committee and the length of each committee member’s term. For continuity’s sake, the pro bono liaison judge and/or committee members should serve terms of one year or longer. Ideally, the pro bono liaison judge position (and the pro bono

1 This Interim OPPM was generated from the recommendations by the EOIR Committee on Pro Bono, which consisted of immigration judges, court administrators, the Acting Chairman of the Board of Immigration Appeals, the Coordinator of the Legal Orientation and Pro Bono Program, and other EOIR staff. The committee met with non-profit organizations, bar associations, private law firms, the Department of Homeland Security, the Office of Refugee Resettlement in the Department of Health and Human Services, and the United Nations High Commissioner for Refugees. The Office of the Chief Immigration Judge expresses its gratitude for the committee’s hard work and dedication.



committee membership as well) should rotate between judges, but the decision to rotate a liaison judge or committee member is left to the ACIJ and that court.

The pro bono liaison judge, together with the court administrator, should meet regularly with local pro bono legal service providers to discuss improving the level and quality of pro bono representation at the court. Such meetings should be used to develop and refine local procedures to encourage pro bono representation, bearing in mind the particular needs and circumstances of each court. Pro bono liaison judges should encourage and, insofar as appropriate, facilitate discussion between government and pro bono counsel. They should also consult with the EOIR Legal Orientation & Pro Bono Program (LOPBP) to strengthen the agency’s public outreach and to better coordinate the agency’s support of pro bono representation.

B. Training for Pro Bono Counsel

Pro bono training conferences, the Model Hearing Program (coordinated through the LOPBP), and similar efforts are effective ways to increase the available pool of pro bono representatives. Judges and pro bono committee members are encouraged to play an active part in pro bono training programs on immigration courtroom practice and procedure, where appropriate and authorized. When a judge is interested in participating in such a program, the judge must promptly forward the invitation (and any additional information) to his or her ACIJ for supervisory authorization and thereafter request approval from the EOIR Ethics Office. Judges should not accept invitations prior to receiving authorization and approval.

C. Courtroom Practices

Although EOIR is committed to completing cases promptly, the particular needs of pro bono representatives who appear before the immigration courts should also be taken into consideration. Judges are strongly encouraged to be flexible with pro bono representatives, particularly in the scheduling of hearings and in the setting of filing deadlines.

1. Pro Bono Appearances

Judges should ask representatives appearing pro bono to identify themselves as such. Pro bono representatives should be asked to annotate the Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28) to reflect pro bono representation. Absent that annotation, judges should ask representatives to identify themselves orally on the record as appearing pro bono (e.g., “Jane Doe, appearing pro bono on behalf of John Smith”).

When a pro bono representative enters an appearance, the court should enter the words “pro bono” in the comments field in CASE. An accurate electronic record is critical to track and to verify genuine pro bono representation.



2. Scheduling of Pro Bono Cases

Judges should be mindful of the inherent difficulties in the recruiting of pro bono representatives and the burdens pro bono representatives assume for the public good. To facilitate pro bono representation, judges are encouraged to give pro bono representatives priority scheduling at master calendars when requested.

With respect to individual calendars, judges should be cognizant of the unique scheduling needs of law school clinics operating on an academic calendar and pro bono programs which require sufficient time to recruit and train representatives. Because clinics and pro bono entities often face special staffing and preparation constraints, judges should be flexible and are encouraged to accommodate appropriate requests for a continuance or to advance a hearing date.

3. Pre-Hearing Statements and Conferences

Pursuant to 8 C.F.R. § 1003.21, judges may require pre-hearing statements, including stipulations of fact. Pre-hearing statements can be especially valuable in pro bono cases, where the representative’s time and resources might be limited. Judges should also encourage pre-hearing conferences between the parties to narrow the issues and to prompt the timely submission of evidence, which foster both more efficient proceedings and more efficient use of limited pro bono resources.

4. Appearance by Telephone or Video Conference

As discussed above, judges should be mindful of the difficulties and burdens facing pro bono representatives. Accordingly, judges should be flexible when a pro bono representative seeks to appear telephonically or through video conferencing (also known as televideo and VTC).

As respondents are often detained in locations that are not readily accessible, video conferencing is an attractive means for a pro bono representative to communicate with his or her client. Where EOIR video conferencing is available in conjunction with a scheduled hearing and the request to use the equipment is reasonable, courts may allow representatives to use EOIR video conferencing equipment to communicate briefly with respondents. However, courts should be careful that the use of video conferencing by representatives not disrupt court operations, and courts must be vigilant and responsible regarding the expenses associated with the use of any telecommunication equipment.

D. Legal Orientations and Group Rights Presentations

Judges and courts are encouraged to support legal orientations and group rights presentations, whether or not funded by the LOPBP. Non-profit organizations that provide such programs can greatly assist local pro bono efforts to disseminate critical legal information, prepare respondents for master calendar hearings, screen respondents for eligibility for relief, and identify cases for referral to pro bono counsel. These programs serve a vital role in providing detained respondents with access to basic legal services. They also provide a benefit to the court in that respondents better understand the proceedings when they enter the courtroom.



Judges and court administrators can facilitate orientation and rights presentations in a variety of ways. For example, liaison judges and court administrators should be attentive to operational issues for the presenters of these programs. Also, where appropriate, reasonable, and available, immigration courtrooms and EOIR video conferencing equipment may be made available to pro bono organizations to conduct presentations. Furthermore, within the bounds of reason and propriety, courts could share information that will help presenters to assemble detainees and to tailor their presentation to the specific audience.

Given the value of such programs, courts should encourage and facilitate the development of orientation and rights presentations for non-detained respondents as well.

E. Access to Respondent Information

Upon reasonable request, immigration court records should be made available to pro bono organizations and representatives, where court resources allow and the sharing of information is not prohibited by law (e.g., attorney-client privilege, the Privacy Act, 8 C.F.R. § 1208.6). Courts should support pro bono operations in their efforts to identify potential pro bono cases and, with respondents’ written authorization, may share non-classified information prior to a formal entry of appearance.

If a court is concerned that an organization or representative is requesting information for a motive or purpose other than the identification of pro bono clients, the court should consult its supervising ACIJ and, as appropriate, the LOPBP Coordinator.

F. Self-Help Legal Materials

Self-help legal materials prepared by the LOPBP are valuable to anyone appearing without counsel. These materials, which are regularly reviewed and updated by the LOPBP contractor staff and EOIR’s Office of the General Counsel, have the ability to increase respondents’ understanding of immigration laws, removal proceedings, and the implications of their pleadings.

Approved materials are available from the LOPBP and, insofar as it is practical, courts should make these available to the public as well. Courts could make materials available upon request at the filing window and/or, if the materials are available electronically, distribute or post flyers specifying where those materials are located on the Internet.

Please note that the LOPBP welcomes comments and suggestions from judges, court administrators, attorney advisors, judicial law clerks, and other court staff on how to improve existing self-help legal materials. However, anyone in the courts who develops self-help legal materials for their location must first provide a draft to the LOPBP and the appropriate ACIJ for approval.



G. Minor Respondents

Given the particular vulnerability of minor respondents, judges are strongly encouraged to facilitate pro bono representation whenever minors are involved. Judges are reminded to employ the child-friendly practices described in OPPM 07-01 (Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children). Many of those practices can and should be applied to any case involving a minor, whether unaccompanied, accompanied, detained, or non-detained.

IV. Handling Pro Bono Cases Ethically

It is incumbent on every judge to facilitate pro bono representation. Equally important, however, is that every judge must be careful to stay within the bounds of ethics and propriety.

When encouraging pro bono representation, judges should be mindful neither to pressure representatives to appear pro bono nor to penalize representatives who do not wish to handle pro bono cases. Pro bono representation should be truly voluntary, and attorneys and other representatives should not feel compelled to appear on specific cases.

As issues regarding Department ethics and agency policy frequently arise in this area, individual judges, pro bono liaison judges, and pro bono committees should consult their supervising ACIJ and the EOIR Ethics Office. Such consultations will ensure that new programs and/or new practices are permissible. Judges are also encouraged to review their current practices and consult headquarters personnel as appropriate.

V. Conclusion

The best practices listed above are certainly not exhaustive. Judges, court administrators, attorney advisors, judicial law clerks, and all court staff are invited to submit suggestions — both to the Office of the Chief Immigration Judge and to the LOPBP — on how to encourage and facilitate pro bono representation.


Exhibit 6


1

U.S. Department of JusticeExecutive Office for Immigration Review

Office of the Director

Office of Legal Access Programs

5107 Leesburg Pike, Suite 2600Falls Church, VA 22041

July 11, 2011

MEMORANDUM TO: Oren Root, DirectorCenter on Immigration and JusticeVera Institute of Justice

FROM: Steven Lang, Program DirectorOffice of Legal Access Programs

SUBJECT: Legal Orientation ProgramGuidelines - Orientation vs. Representation

The purpose of this memo is to provide guidance in distinguishing between servicesconsidered ‘legal representation’ and those considered ‘legal orientation’ for individualsproviding contract services through the Executive Office for Immigration Review’s (EOIR)Legal Orientation Program (LOP). The LOP is currently carried out through individual taskorders issued under a GSA contract (known collectively as “the Contract”) with the VeraInstitute of Justice. While government funds under the Contract may be used for servicesconsidered legal orientation, those services considered legal representation cannot be covered byContract funds.

The Statement of Work (SOW) of Task order #36 under Fiscal Year 2011 funding statesat Section B that Contract funds “may not be used to provide ‘representation’ within the meaningof 8 C.F.R. § 1.1(m), and as restricted by § 292 of the Immigration and Nationality Act , 8U.S.C. § 1362.”1 While “legal orientation” is not defined in the Immigration and Nationality Act

1Section 292, 8 U.S.C. § 1362: “In any removal proceedings before an immigration judge and inany appeal proceedings before the Attorney General from any such removal proceedings, the personconcerned shall have the privilege of being represented (at no expense to the Government) by suchcounsel, authorized to practice in such proceedings, as he shall choose.” This section is also echoed at 8C.F.R. § 1003.16(b): “The alien may be represented in proceedings before an Immigration Judge by an

Case 2:17-cv-00716-RAJ Document 14-2 Filed 05/11/17 Page 2 of 9Case 2:17-cv-00716-RAJ Document 50-6 Filed 06/26/17 Page 2 of 9

2

(INA), nor at Title 8 Code of Federal Regulations, “representation” is defined at 8 C.F.R. §§1.1(m) and 1001.1(m): “The term representation before the Board and the Service includespractice and preparation as defined in paragraphs (i) and (k) of this section.”

8 C.F.R. §§ 1.1(i) and 1001.1(i) - “The term practice means the act or acts of any personappearing in any case, either in person or through the preparation or filing of any brief or otherdocument, paper, application, or petition on behalf of another person or client before or with theService, or any officer of the Service, or the Board.”

8 C.F.R. §§ 1.1(k) and 1001.1(k) - “The term preparation, constituting practice, means the studyof the facts of a case and the applicable laws, coupled with the giving of advice and auxiliaryactivities, including the incidental preparation of papers, but does not include the lawful functionsof a notary public or service consisting solely of assistance in the completion of blank spaces onprinted Service forms by one whose remuneration, if any, is nominal and who does not holdhimself out as qualified in legal matters or in immigration and naturalization procedure.”

There are five specific tasks under Section A of the SOW, as well as three otherassociated services not mentioned in the SOW that need to be examined in light of suchrestrictions.

1. Group Orientations - SOW Sections A(5) and A(6)2. Individual Orientations - SOW Section A(9)3. Acknowledgement of Non-Representation - SOW Section A(10)4. Distribution of Materials - SOW Section A(12)5. Self-Help Workshops - SOW Section A(13)6. Assistance in Obtaining Documents7. Assistance in Completing Legal Forms8. Legal Representation and other advocacy under non-LOP funding

1. Group Orientations

A(5) - Provide group orientations to all detained aliens, who are or may be placed inimmigration removal proceedings, (with reasonable exceptions to be approved by the COTR),prior to their initial Master Calendar Hearing in the Immigration Court... Group orientationswill review the range of rights available to detained aliens in immigration proceedings, and alertthese individuals to their alternatives or the lack thereof.

A(6) … The presenters will respond to general concerns of individuals in group question andanswer periods held during the group orientations.

attorney or other representative of his or her choice in accordance with 8 C.F.R. part 1292, at no expenseto the government.”


3

The group orientation is informational and non-specific to any particular individual’scase. It should cover general areas of law and procedure, and familiarize individuals with theirlegal rights, responsibilities and options in general terms. As such, it is not consideredrepresentation. The presenter does not “appear in any case, either in person or through thepreparation or filing of any brief or other document, paper, application, or petition on behalf ofanother person or client,” nor is the presenter “studying the facts of a [specific] case” and giving“advice and auxiliary activities, including the incidental preparation of papers....”

2. Individual Orientations

A(9) - Provide individual orientations when requested by unrepresented individuals and asspecified in the POP2. The individual orientations are intended to assist individuals inunderstanding their legal situations. The presenters may respond to specific concerns/questionsof an individual regarding matters of immigration law and procedure. Individual orientationsshould be distinguishable from consultations with legal representatives to avoid the appearanceof representation to the individuals.

The purpose of the individual orientation is to elicit information from unrepresentedindividuals in order to assist them in understanding their legal situations, including theavailability of potential relief from removal and release eligibility, as well as in distinguishingbetween meritorious cases and frivolous cases.3 The presenter may respond to specificconcerns/questions of an individual, generally educating the individual in law and applicableprocedure, as well as in the requirements for pursuing particular forms of relief. The presentershould be very careful not to give legal advice concerning the individual’s specific case.

Under regulations at 8 C.F.R. §§ 1.1(k) and 1001.1(k), “preparation constituting practice”(and thus representation) does not occur unless the legal representative (1) studies the facts of thecase, (2) gives legal advice, and (3) performs other activities, such as the preparation of forms ora brief for the Immigration Court. Providing even one of these three services, though, may leadto circumstances in which an attorney-client relationship is created under local state bar rules (forexample, if the attorney provides specific legal advice regarding a particular action), and couldconstitute the unauthorized practice of law if provided by a non-attorney/accreditedrepresentative. Under guidelines published by the American Bar Association (ABA), theexistence of an attorney-client relationship is based on the “subjective understanding” of thepotential client.4

2 Program Operation Plan (POP)3Section 2(G) of the LOP Statement of Work copies the language from the original Senate

version of the appropriation bill, stating that presentations were to “provide immigration detainees withessential information about immigration court procedures and the availability of legal remedies to assistdetainees in distinguishing between meritorious cases and frivolous cases.” See page 39 of the SenateAppropriation Committee Report from the Commerce, Justice, and State, the Judiciary, and RelatedAgencies Appropriations Act for Fiscal Year 2002 (P.L. 107-77).

4LOP providers should familiarize themselves with their respective State Bar rules regardingactions which may form the basis of an attorney-client relationship and make all diligent efforts to avoidthese while performing LOP-contracted services. The following link provides information about various


4

For this reason, it is important to distinguish between information provided as part of anindividualized assessment and legal advice. The Contract and regulations allow for the provisionof information through an individualized assessment as long as such services do not include thegiving of advice and other activities. The concept of advice is directive (“I suggest you apply forthis relief”) and not informational (“If you are interested in applying for this type of relief, this iswhat the Immigration Law requires”).

In addition, individual orientations must be conducted in a manner that is clearlydistinguishable to detainees from consultations with legal representatives to avoid the appearanceof an attorney-client relationship (representation) to the individual, to other detained individuals,and to detention facility staff. Best efforts should be taken to hold the individual orientationsduring a time and at a location in the detention facility where consultations with legalrepresentatives are not taking place. Moreover, relevant detention facility staff should beregularly reminded of the limited role of the presenter during the individual orientation in orderto avoid any confusion.

3. Acknowledgement of Non-Representation

A(10) - Explain to all aliens receiving an individual orientation that the presenter is not theirattorney or representative… The presenter shall also obtain written acknowledgment from theindividual stating, in effect, that the individual understands the presenter is not his/her attorneyor representative, that the individual has voluntarily given his/her information, and that there isno guarantee of pro bono representation in the individual’s case.

At the beginning of the individual orientation, the presenter should have all individualssign a disclaimer acknowledging, in effect, that (1) they understand that the presenter is not theirattorney or representative; (2) that they are willingly providing their personal information; (3)that they authorize its disclosure to other parties for the purpose of obtaining pro bono/volunteerlegal assistance; and (4) that there is no guarantee of pro bono representation in their cases.Additionally, presenters should be aware of their responsibilities under the Privacy Act at 5U.S.C. § 552(a) et. seq. and the confidentiality provisions at 8 C.F.R. §§ 208.6 and 1208.6.

State Bar definitions for the practice of law: http://www.abanet.org/cpr/model-def/model_def_statutes.pdf. The ABA’s Model Rules of Professional Responsibility are available athttp://www.abanet.org/cpr/mrpc/mrpc_toc.html. In particular, see Model Rule 6.5 “Nonprofit and CourtAnnexed Limited Legal Services Programs” which is applicable to all states except Oregon (whichfollows the Model Code). Those admitted to the California State Bar should review California’s rulessince it follows neither the Model Rules nor the Model Code. Finally, useful links for finding state lawrules involving representation and the attorney-client relationship are the Cornell University Law School,American Legal Ethics Library, Comparative and Topical Index and State Law links athttp://www.law.cornell.edu/ethics/comparative/ (index of comparative law) andhttp://www.law.cornell.edu/ethics/comparative/rules topical.html (topical index by State).


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The following is sample language that can be provided to LOP participants prior to thestart of an individual orientation session that may be helpful in both clarifying the role of theLOP subcontractor while obtaining written evidence that the participants were notified of thislimited role. The sample language is as follows:

Sample Acknowledgment Language for use at the beginning of an individual orientation session:

I, , understand that [name of LOP staff person] from [LOP Subcontractor] ishere to help inform me of my legal rights, help me understand the legal process, and assist me infinding a free attorney, if possible. [Name of LOP staff person] from [LOP Subcontractor] is notmy attorney, and will not appear in court on my behalf. I understand that I should begin lookingfor a private attorney if I am able and want to be represented.

I also understand that the information I give [name of LOP staff person] from [LOPSubcontractor] about my case may be given to other people for the purpose of obtaining freelegal services with my case

_____________________ ______________Signature Date

If an individual in search of representation seems able to afford a private attorney, thepresenter should not refer the individual to a particular attorney. However, the presenter mayrefer the individual to a bar-associated attorney referral service (e.g., the AILA ImmigrationAttorney Referral Service) or to an inclusive list of attorneys who represent individuals at thedetention facility. LOP providers should not restrict which attorneys are included on this list.LOP staff are reminded that such general lists of immigration providers intended for distributionto detained individuals must first be reviewed by EOIR and may also require the approval oflocal ICE and the facility. Further, any list distributed by an LOP provider should not be onEOIR agency letterhead or the letterhead of any immigration court. The list must include adisclaimer stating that: (a) the list is being provided by the LOP provider as a courtesy, (b) thereis no guarantee of representation by any of the listed attorneys, and (c) neither the Department ofJustice nor EOIR controls, maintains, or screens the list, or endorses any individuals ororganizations on the list. While EOIR may review the lists to ensure that they contain the properdisclaimers, EOIR cannot give guidance on or select who should be included on the lists.Finally, the maintenance and distribution of an attorney list is within the discretion of each LOPprovider, and each provider should contact the relevant state bar association to confirm that theproposed list would not violate state bar restrictions on attorney advertising or referrals.

4. Distribution of Materials

A(12) - Distribute to individuals at the group orientation and individual orientation appropriatewritten legal orientation and other relevant and informative materials, as well as make availableany relevant taped materials. All such materials intended for distribution under this agreementmust be pre-approved by the COTR.


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Presenters may only distribute to individuals written and relevant taped materials thathave been pre-approved by EOIR, such as those relating to how a particular type of legal reliefmay be pursued, or standard sample motions and briefs designed to assist unrepresentedindividuals appearing before the Immigration Court. However, the preparation and/or provisionof any case-specific written materials (i.e., those created or specifically tailored to theindividual’s particular circumstances) may not be performed using LOP funding. In addition,case-specific written materials prepared using non-LOP funding may not be provided toindividuals at the group orientation, individual orientation, or group workshop, and they shouldonly be provided in a manner that is distinguishable to the individual and other detainees fromactivities covered by the Contract.

5. Self-Help Workshops

A(13) - Provide “self-help workshops” in accordance with the POP for unrepresentedindividuals interested in pursuing relief from removal (including voluntary departure), custodyredetermination, or subject to special procedures (i.e. Temporary Protected Status, reinstatementof a previous order of removal/deportation, “reasonable fear” or “credible fear” proceedings,and aliens eligible for post-removal order review). The purpose of the self-help workshop is toinform and assist small groups of individuals in understanding the relevant law and proceduresto be followed in pursuing particular forms of relief, custody redetermination, or inunderstanding special procedures in place, that may apply to their own legal situation…

The setting of the self-help workshop should be that of a classroom, in whichunrepresented detainees are trained to assist themselves in pursuing forms of legal relief,including the collection of information and documents and the preparation of papers. As legalprofessionals who hold themselves out as knowledgeable in immigration law, presenters cannotassist in the direct preparation of an individual’s papers (which would constitute performance of“auxiliary activities” under 8 C.F.R. §§ 1.1(k) and 1001.1(k)), except regarding the clericalcompletion of forms as provided below. Self-help workshops should only be scheduled formultiple participants. In the event that only one of the scheduled LOP participants appears for ascheduled self-help workshop, the LOP presenter may proceed with the session as an individualorientation (and count it as such in the database). However, self-help workshops should not beinitially scheduled for one individual.

6. Assistance in Obtaining Documents

LOP presenters may assist LOP participants in obtaining personal documents (such asmedical or criminal conviction records) under LOP funding. However, such assistance shouldonly be provided to unrepresented individuals who have independently determined that suchdocuments are necessary for their immigration case, and who have made all diligent efforts toobtain these materials themselves. While assistance in obtaining documents does not constituterepresentation under the regulations cited above, LOP presenters are nevertheless cautioned thatthey may be held liable under other laws for any errors they commit in performing such services.It is recommended that before undertaking any such services: (1) the LOP participant provide tothe presenter written authorization allowing the presenter to obtain the specified items on behalf


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of the participant; (2) the LOP participant acknowledge in writing that the LOP presenter is notacting as his/her representative; and (3) the LOP presenters consult with their malpracticeinsurers to determine if performing such services subjects them to potential liability when notcarried out successfully. It is also suggested that LOP presenters, where possible, assign suchclerical tasks to other staff in order to distance themselves further from any appearance ofrepresentation, practice, or preparation activities.

7. Assistance in Completing Legal Forms

LOP presenters may assist unrepresented LOP participants with completing immigrationforms under LOP funding. However, to ensure that the presenters do not engage inrepresentation as defined by 8 C.F.R. §§ 1.1(m) and 1001.1(m), LOP presenters should onlyprovide such services in adherence to the guidelines set forth above at section 2, as well as withthe additional guidelines set forth below:

A. LOP presenters must limit these services to helping unrepresented participants fillin the blank spaces on immigration forms. The assistance must be clerical innature, but can include general information on how to complete the form. TheLOP presenter may translate what is written on the form and explain any languagethat is unclear. However the LOP presenter must fill in the blanks with theindividual’s answers and may not advise the individual on how to answer aquestion based on a participant’s particular factual situation and the applicablelaw.

B. The LOP presenters may not select specific immigration forms for an individualto complete. Rather, presenters may provide information on various formsgenerally and how to complete them. Once an individual selects a form or isprovided a form by an Immigration Judge, the LOP presenters may meet one-on-one with the individual to assist with filling in the blanks on such pre-selectedforms.

C. After an individual completes the form with the assistance of the LOP presenter,the LOP presenter should read it back to the individual and ask the individual toconfirm its accuracy. This read-back must occur before the individual signs theform stating that all the information on the form is true to the best of his/herknowledge. Additionally, the LOP presenter must sign the form as the preparer, ifrequired by the form.

D. Supervising attorneys may review applications completed by another authorizedrepresentative or immigration assistant. However, the type of feedback thereviewer may give is limited. A reviewer may confirm that the individual hascompleted each line that is required to be filled in, that required signatures aregiven, and that the necessary attachments are present. The reviewer may not,however, provide advice on how to answer a question.


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8. Providing Legal Representation

While LOP presenters are not prohibited under the Contract from providing direct legalrepresentation using non-LOP funding, best efforts should be taken to carry out such legalrepresentation services in a manner clearly distinguishable and separately accountable fromLOP-funded services. In addition, legal representation of individuals identified through the LOPmust be limited to pro bono work (i.e., no charge to the client beyond possible filing fees or othernominal expenses).

Similarly, presenters should refrain from any activities related to fund-raising,political/issue advocacy, impact litigation, or other legal support activities if performed in amanner that would not be clearly distinguishable from LOP-funded services. The keyconsideration is ‘appearance’ to the non-LOP individual.

If an LOP presenter is considering personally accepting a case for pro bonorepresentation, she/he should consider the use of a third party (who may be on thesubcontractor’s staff) to broker the relationship. Under such an arrangement, the presenterwould not appear to be in the position of deciding whether or not to accept the case.

***

This memo replaces any previous guidance to LOP presenters regarding permissibleservices under LOP funding. LOP presenters are further advised to be cognizant of therequirements of their respective state bars. If you have any additional questions concerning anyof the issues explained above, please contact Steven Lang, Program Director of the EOIR Officeof Legal Access Programs at 703-305-1295.
