DOCUMENT NUMBER: FR 30-00

FEDERAL REGISTER CITE: 65 FR 39513

DATE OF PUBLICATION: June 27, 2000

BILLING CODE: 4410-30

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3 and 292

[EOIR No. 112F; A.G. Order No. 2309-2000]

RIN 1125-AA13

Professional Conduct for Practitioners--Rules and Procedures

AGENCY: Executive Office for Immigration Review and Immigration and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This final rule amends the rules and procedures concerning professional conduct for attorneys and representatives (practitioners) who appear before the Executive Office for Immigration Review (EOIR) and/or the Immigration and aturalization Service (the Service). This final rule also includes a provision that was promulgated as an interim rule on April 6, 1992, pursuant to section 545 of the Immigration Act of 1990, concerning sanctions against attorneys or representatives who engage in frivolous behavior in immigration proceedings. This final rule outlines the authority EOIR has to investigate complaints and impose disciplinary sanctions against practitioners who appear before its tribunals, and clarifies the authority of the Service to inves tigate complaints regarding practitioners who conduct business with the Service. This final rule permits EOIR and the Service to investigate allegations of ethical misconduct and initiate disciplinary proceedings more effectively and efficiently while ensuring the due process rights of the practitioner. The final rule also reinstates the Board of Immigration Appeals as the reviewing body for disciplinary decisions, instead of the Disciplinary Committee, as was set forth in the proposed rule. Both the public comments and the Department of Justice's (Department) reassessment of the appellate review process resolved that, as is presently established, Board review of disciplinary decisions is more efficient and practical and should therefore remain unchanged. Additionally, this final rule enables efficient resolution of frivolous complaints and meritorious cases, a consideration critical to, and in the best interests of, all parties involved.

EFFECTIVE DATE: July 27, 2000.

FOR FURTHER INFORMATION CONTACT: Charles Adkins-Blanch, Acting General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2400, Falls Church, Virginia, 22041, telephone (703) 305-0470, or Julia A. Doig, Chief Appellate Counsel, Immigration and Naturalization Service, 5113 Leesburg Pike, Suite 200, Falls Church, Virginia 22041, telephone (703) 756-6257.

SUPPLEMENTARY INFORMATION: Currently, the regulations at 8 CFR 292.3 require the Service to investigate complaints filed regarding the conduct of attorneys and representatives (referred to in the final rule as practitioners) practicing before both the Service and EOIR. If the investigation establishes, to the satisfaction of the Service, that disciplinary proceedings should be instituted, the General Counsel of the Service serves a copy of the written charges upon the attorney or representative and upon the Office of the Chief Immigr ation Judge. The present procedure provides for the government to be represented by a Service attorney in disciplinary proceedings before an Immigration Judge. The decision of the Immigration Judge may be appealed to the

Board of Immigration Appeals (Board) by either party.

    On January 20, 1998, the Service and EOIR published a proposed rule in the Federal Register (63 FR 2901) amending parts 3 and 292 of the rules and procedures governing professional conduct for practitioners who appear before EOIR, which includes the Board and the Immigration Courts, as well as the rules and procedures governing professional conduct for practitioners who conduct business before the Service. The proposed rule included various grounds of discipline and procedures for hearings and appeals, which, although somewhat more sophisticated, were in many ways similar to the approach of the c urrent regulations. The proposed rule was neither written on a clean slate nor did it propose to institute a new form of professional discipline; in fact, it was merely intended to clarify and improve the existing procedures and, in particular, to remove the Service from the enforcement role with respect to professional misconduct occurring before the Board and the Immigration Courts. The proposed rule did contain a new procedure for adjudicating disciplinary complaints. The proposed process included a hear ing by an adjudicating official appointed by the Director of EOIR and a report by that adjudicating official to a three-member Disciplinary Committee appointed by the Deputy Attorney General.

    This final rule retains the Service's investigative and prosecutorial responsibilities only in disciplinary proceedings for those practitioners who conduct business before the Service as an adjudicative body, e.g., in asylum proceedings, adjustment interviews, and visa petition cases, but transfers these same investigative and prosecutorial responsibilities to EOIR for practitioners appearing before the Board and the Immigration Courts. This change allows each agency to maintain separate jurisdictions over practitioners based upon which agency they appear before, while permitting both agencies to utilize the same hearing and appeal process. This change will result in a fair and consistent application of the rules.

    In response to the proposed rulemaking, EOIR and the Service received 491 comments. Identical form letters from South Florida practitioners totaled 130, with 17 additional individual letters from the same region. These letters account for approximately 30% of the total comments received. Another 277 names were signed to one petition-style letter prepared by the national office of the American Immigration Lawyers Association (AILA), accounting for approximately 57% of the total comments received. Some of the public comments were supportive; one in particular recounted the detrimental effect that one practitioner's negligence had on two unsuspecting immigrants. Many others, however, were opposed to any rule that would regulate practitioners’ professional conduct. EOIR and the Service gave full consideration to each and every public comment submitted during the comment period. We first submit some general authorities and then address the concerns expressed in the comments in the following passages.

    In exercising its plenary powers over immigration, Congress has granted express authority to the Attorney General to ‘establish such regulations * * * as (s)he deems necessary for carrying out (her) authority” under the laws relating to the immigration and naturalization of aliens. 8 U.S.C. 1103(a)(3). Congress also provided that aliens in immigration proceedings “shall have the privilege of being represented (at no expense to the government) by such counsel, authorized to practice in such proceedings, as h e shall choose.” 8 U.S.C. 1362 (emphasis added). In so doing, Congress vested implied authority with the Attorney General to prescribe standards of conduct and rules of procedure that are applicable to practitioners who appear before the Board, the Immigration Courts, and the Service.

    In the proposed rule, EOIR and the Service noted that the primary purpose of prescribing rules and setting standards for determining who may practice before the Board, the Immigration Courts, and the Service, and for adopting procedures for disciplining those practitioners who fail to conform to such standards, includes the protection of the public, the preservation of the integrity of the Immigration Courts, and the maintenance of high professional standards. EOIR and the Service are committed to these imp ortant public interest objectives through the fair and efficient administration of this final rule.

    While most practitioners adequately represent their clients in immigration matters, a small minority of practitioners do not meet the minimum standards set forth in this rule and an even smaller minority may take unfair advantage of the very clients they have promised to help. Others have engaged in conduct that has rendered them unfit to practice law, as determined by the state courts which originally licensed them to practice. The practitioners who should not, and in fact cannot, be permitted to continue to practice before EOIR and the Service are the practitioners who will primarily be affected by this rule.

General Comments

    A chief concern of many commenters was that this rule would have a chilling effect on an immigration practitioner’s ability to advocate zealously for his or her client, suggesting that both the First Amendment right to freedom of speech and the Sixth Amendment right to counsel were implicated by such a rule. A similar majority argued that it is not the function of EOIR or the Service to control the conduct of attorneys who have been admitted to the practice of law by state courts. Many commenters expressed concern that sanctions imposed pursuant to this rule could cut off a practitioner’s livelihood or jeopardize his or her professional reputation, although some acknowledged a need to protect clients from unscrupulous immigration practitioners, citing incompetent and/or unethical conduct by practitioners. One commenter was particularly concerned with protecting non-profit agencies from the burdens of potentially higher professional liability policies, more staff training, and better case-screening procedures.

    Several commenters suggested that EOIR and the Service pattern the proposed disciplinary rule after the disciplinary process applicable to representatives who appear before Administrative Law Judges in the Social Security Administration (SSA) and the Internal Revenue Service (IRS). Under such advisement, EOIR and the Service consulted SSA and IRS regulations in drafting this disciplinary rule and adopted many of the provisions promulgated by those agencies.

    The following paragraphs provide a section-by-section summary of the comments received, followed by the Department’s response. Many of the comments were lengthy and we have attempted to summarize the commenters’ views as accurately as possible. We have responded to all of the relevant issues raised in the comments and have highlighted where revisions have been made to the proposed rule. Please note that section numbering in the final rule has been revised.

Sections 3.101(a) and 3.106(a)--Adjudicating Officials and Composition of the Disciplinary Committee

    Comments . Some commenters suggested that an inherent conflict

exists given that adjudicating officials and the Disciplinary Committee have a connection to EOIR that taints the entire disciplinary process. Comments regarding the composition of the Disciplinary Committee included the following: The composition of the Committee is vague; the pool of possible members should be specified with term limits; no qualifications for the Committee have been specified; the Committee should be independent of the Department; the Committee should include a non-lawyer; the Committee s hould include a member of the private bar; and the EOIR representative should not serve on the Committee if he or she is also the complainant in a particular case. Several commenters also suggested that an Immigration Judge should not serve as the adjudicating official in a case where he or she is also the complainant, an Immigration Judge should not serve as the adjudicating official in any case involving a practitioner who regularly appears before him or her, and the disciplinary hearing should be conduct ed by an Administrative Law Judge (ALJ) pursuant to the Administrative Procedure Act (APA).

    Other commenters assumed that Immigration Judges would be prejudiced against aliens while favoring the government and, therefore, would not be fair adjudicating officials. Some commenters noted that the rule provides no guidelines for appointing adjudicating officials and no opportunity to submit briefs or arguments to the Disciplinary Committee.

    Response . Although some commenters concluded that the connection between adjudicating officials and EOIR taints the disciplinary process, there was no specific suggestion of how such a connection causes conflict or unfairness. Moreover, there is little merit to the argument of inherent conflict, since the Board and Immigration Judges are all part of the Department and yet act independently in fairly adjudicating the nation’s immigration laws. A connection between EOIR and the proposed disciplinary process is not in herently unfair nor does it create an inherent conflict. Precedent for such a process exists within the disciplinary system used by the Social Security Administration, which uses its own ALJs as hearing officers and its own

Appeals Council as a reviewing panel.

    However, EOIR and the Service have revised several of the provisions in this section in response to the comments that we received. The rule has been revised to provide that an Immigration Judge shall not serve as the adjudicating official in cases where he or she is also the complainant in a case (Sec. 3.106(a)(1)(i)). Also, an Immigration Judge shall not serve as the adjudicating official in any case involving a practitioner who regularly appears before him or her (§ 3.106(a)(1)(i)). In the final rule, the Chief Immigration Judge will appoint the adjudicating official in most cases (§ 3.106(a)(1)(i)).

    More significantly, in light of the comments received, EOIR and the Service have, in the final rule, replaced the proposed Disciplinary Committee with the Board in all respects. Since the Board already has the authority to implement the existing disciplinary system under § 3.1(d)(3), and to hear appeals of disciplinary sanctions under § 292.3(b)(1)(vi), revising the final rule to have appeals go to the Board results in no change in the Board’s current (and long-standing) role.

    We have identified a number of reasons for retaining the Board as the appellate body for disciplinary decisions made by adjudicating officials. First, the Board provides practitioners subject to these proceedings with an established appeal process. All of the procedural practices concerning briefing schedules, transcripts, motions, and oral arguments will be consistent for both immigration proceedings and disciplinary proceedings. Most practitioners know the Board’s appeal procedures and will be familiar w ith them when appealing any disciplinary decision. Second, the Board has the immigration expertise which may prove critical where a practitioner’ conduct is intricately intertwined with the legal issues in an underlying immigration case. Third, the Board, unlike the Disciplinary Committee, has the ability to publish precedent decisions, thereby providing practitioners and the public with authoritative interpretations of the regulations. Fourth, it is logical for the Board to exercise ultimate control over p ractitioners who appear before EOIR, and also consistent with state court practice of having the highest appellate level oversee the ultimate discipline of practitioners. Finally, the Board is structured to hear cases on a regular, consistent basis and has the support resources (attorney staff, paralegals,clerks) to fully staff a disciplinary system.

    By retaining the Board’ review authority, we anticipate the issuance of timely decisions by members possessing the requisite legal and procedural expertise, as well as adjudicatory experience. This assumption is based on the fact that the Board has reviewed disciplinary cases on appeal throughout the existence of the current disciplinary program. Some of the comments to the proposed rule raised opposition to the “in-house” nature of the Disciplinary Committee. However, given that the Board is an established independent adjudicator within the Department, the revised appeal structure should dispel any concerns about an “in-house” review.

    One commenter suggested disciplinary hearings should be conducted pursuant to the Administrative Procedure Act (APA) (codified at 5 U.S.C. 551 et seq.), which primarily regulates the processes of rulemaking and adjudication by agencies with substantial independent authority in the exercise of specific functions. Determining whether the APA applies to disciplinary proceedings conducted under this rule requires careful consideration of several factors.

    As stated above, Congress has granted authority to the Attorney General to set standards for determining who may practice before the Board, the Immigration Courts, and the Service, and to prescribe rules of procedure for disciplining those who fail to conform to such standards. An agency with the power to admit practitioners has the authority to disbar or discipline them for professional misconduct.

    Also, since deportation proceedings are not subject to the APA, see Marcello v. Bonds, 349 U.S. 302, 309 (1955) (Administrative Procedure Act is not applicable to deportation proceedings under the Immigration and Nationality Act); Castillo-Villagra v. INS, 972 F.2d 1017, 1025 (9th Cir. 1992) (Immigration and Nationality Act, rather than Administrative Procedure Act, controls exclusively in deportation proceeding), disciplinary proceedings pursuant to 8 U.S.C. 1362 historically have not been conducted under the APA, see Herman v. Dulles, 205 F.2d 715, 717 (D.C. Cir. 1953) (existing powers of administrative agencies to control practice by counsel who appear before them are not changed by the Administrative Procedure Act, citing Attorney General's Manual on the Administrative Procedure Act, 1947, p.66). Furthermore, no statutory provision exists which requires the adjudication of such disciplinary proceedings under the APA. See United States v. Independent Bulk Transport, Inc., 480 F. Supp. 474, 477 (S.D.N.Y. 19 79) (provisions of APA apply only if another statute requires that they be utilized); see also Amalgamated Meat Cutters and Butcher Workmen v. Connally, 337 F. Supp. 737, 761-62 (D. D.C.1971).

    Moreover, this rule provides ample protections for practitioners subject to discipline, analogous to procedures provided in the APA and consistent with the delineated public interest objectives of the Department. Such protections include timely notice of hearings and the opportunity to be heard with respect to the charges lodged.

    In addition, subjecting disciplinary proceedings to the strictures of the APA is unnecessary, and it would also be impractical and burdensome given that Immigration Judges (who comprise the largest pool of potential adjudicating officials) do not adjudicate cases pursuant to the APA. Finally, as stated in the supplementary information to the proposed rule, practitioners subject to discipline may avail themselves of judicial review pursuant to 28 U.S.C. 1331 upon issuance of a final administrative order.

    Therefore, in light of the above considerations and in order to maintain consistency with, among other things, the current disciplinary rule, Board disciplinary decisions that have been upheld by the Federal courts, and established Immigration Court practices, the Department has determined that disciplinary hearings will be conducted in the same manner as immigration proceedings.

    The proposed rule contained no provision for briefs to be submitted or oral arguments to be heard before the Disciplinary Committee. However, now that the rule retains the Board as the appellate body in disciplinary proceedings, the regulations that govern oral argument (see 8 CFR 3.1(e)) and the submission of briefs on appeal (see 8 CFR 3.3(c)) are incorporated by reference in the final rule.