Executive Office for Immigration Review; List of Free Legal Services Providers [62 FR 9071] [FR 7-97]

DOCUMENT NUMBER: FR 7-97

FEDERAL REGISTER CITE: 62 FR 9071

DATE PUBLISHED: February 28, 1997

BILLING CODE 4410-30

DEPARTMENT OF JUSTICE

8 CFR Parts 3, 103, 212, 235, 236, 242, 287, 292, 292a

[EOIR No. 113F; A.G. Order No. 2070-97]

RIN 1125-AA14

Executive Office for Immigration Review; List of

Free Legal Services Providers

AGENCY: Executive Office for Immigration Review, Justice.

ACTION: Final rule.

SUMMARY: This final rule transfers the responsibility for maintaining the list of organizations providing free legal services in immigration proceedings from the Immigration and Naturalization Service (INS) to the Executive Office for Immigration Review (EOIR), Office of the Chief Immigration Judge, and amends the regulations by permitting attorneys who provide free legal services to indigent aliens to apply to be included on the list. The rule also amends the regulations by transferring appellate jurisdiction fr om the Associate Commissioner for Examinations, INS, to the Board of Immigration Appeals for appeals from decisions on applications to be included on the list of free legal services providers and from decisions on removals from such a list. Finally, this rule will further implementation of section 604(d)(4) of the recently enacted Illegal Immigration Reform and Immigrant Responsibility Act of 1996 by requiring that the list of free legal services providers maintained by the Chief Immigration Judge include a list of persons who have indicated their availability to re present aliens in asylum proceedings on a pro bono basis.

EFFECTIVE DATE: March 31, 1997.

FOR FURTHER INFORMATION CONTACT: Margaret M. Philbin, General Counsel, Executive Office for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church, Virginia 22041, telephone (703) 305-0470.

SUPPLEMENTARY INFORMATION: On August 5, 1996, the Executive Office for Immigration Review published a proposed rule in the Federal Register (61 FR 40552) amending 8 CFR parts 3 and 292a by transferring the responsibility for maintaining the list of entities that will provide free legal services in immigration proceedings from INS to EOIR, Office of the Chief Immigration Judge. This list of organizations and attorneys, qualified pursuant to this rule, who can represent aliens in immigration proceedings before the Board of Immigration Appeals and the Immigration Courts is given to aliens who are parties in immigration proceedings in an Immigration Court. This rule amends the present regulation by permitting attorneys who provide free legal services to indigent aliens to apply to be included on the list of free legal services providers.

In response to the above rulemaking, EOIR received two comments. One commenter noted that there may be areas where Immigration Courts are located but where no organizations or attorneys are available to represent aliens on a pro bono basis. The commenter suggested that the Immigration Courts should also maintain lists of private attorneys who regularly practice before each of the Courts. Such lists could be distributed to aliens in need of counsel, and any licensed attorney would be able to place his or he r name on the lists.

However, EOIR has promulgated this rule in order to enhance the opportunities for indigent aliens to find free legal counsel by providing them with a list of organizations and attorneys who are willing to represent them on a pro bono basis. Moreover, the statutory basis to formulate and maintain such lists requires that the lists be maintained for this purpose. See 8 U.S.C. 1252(b)(2). Therefore, this suggestion will not be adopted.

The same commenter also inquired as to whether an attorney must accept a certain number of pro bono cases in order to be included on the list of free legal services providers, and whether an attorney would be prohibited from accepting any cases, or a certain percentage of cases, for a fee. EOIR does not believe it is necessary or advisable to require an attorney to accept a specific number or percentage of cases on a pro bono basis in order to be included on the list of free legal services providers. Nor will an attorney included on the list be precluded from accepting cases for a fee. An attorney included on the list may continue serving a wide range of paying clients as long as he or she agrees to represent indigent aliens on a pro bono basis. However, if it comes to EOIR's attention that an attorney who is included on the list is not, in fact, accepting cases on behalf of indigent aliens on a pro bono basis, the regulation provides that the Chief Immigration Judge, or his or her designee, may remove the attorney's name from the list after giving the attorney notice and an opportunity to answer. Moreover, this issue is subject to further review if necessary to eliminate any abuses.

The other commenter expressed concern that the proposed rule provided that only an organization that has on its staff, or retains at no expense to the alien, an attorney who is available to render free legal services, or a bar association that provides a referral service of attorneys who render pro bono assistance, may apply to be included on the list of free legal services providers, while organizations other than bar associations that provide referral services for indigent aliens could not apply to be included on the list. The commenter therefore suggested that the rule be amended to include additional organizations that provide referral services for indigent aliens.

While the purpose of this regulation is to enhance the opportunities for indigent aliens to find free legal counsel by expanding the list of organizations and attorneys who are willing to represent them on a pro bono basis, EOIR also recognizes the need to ensure that only organizations with bona fide referral services be included on the list. Therefore, the rule has been amended to allow organizations that operate referral services to apply to be on the list and to allow the Chief Immigration Judge to exercise his or her discretion in ruling on such applications.

Finally, this rule furthers implementation of section 604(d)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 104-208, by having the list of free legal services providers maintained by the Chief Immigration Judge include a list of persons who have indicated their availability to represent aliens in asylum proceedings on a pro bono basis.

Although the rule requires that an organization or attorney file an application requesting to be placed on the list of free legal services providers, there is no specific application form being used for this request at the present time. Further, any organization that is on the current list of free legal services providers will not need to apply at this time to be included on the new list. All organizations on the current list will be contacted by the Office of the Chief Immigration Judge, or his or her desi gnee, to determine if they intend to remain on the list and to verify identifying information, such as address and telephone number. Any organizations that cannot be reached will not be included on the new list.

In accordance with 5 U.S.C. 605(b), the Attorney General certifies that this rule does not have a significant adverse economic impact on a substantial number of small entities. The Attorney General has determined that this rule is not a significant regulatory action under Executive Order No. 12866, and accordingly this rule has not been reviewed by the Office of Management and Budget. This rule has no Federalism implications warranting the preparation of a Federalism Assessment in accordance with section 6 of Executive Order No. 12612. The rule merits the applicable standards provided in sections 3(a) and 3(b)(2) of Executive Order No. 12988.