Margaret M. Philbin
General Counsel
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 2400
Falls Church, VA 22041

Janice B. Polodny
Associate General Counsel
Immigration and Naturalization Service
425 I Street, N.W., Room 6100
Washington, D.C. 20536

RE: Proposed regulations regarding professional conduct for practitioners published at 63 Fed. Reg. 2901 (January 20, 1998)

Dear Ms. Philbin and Ms. Polodny:

Following are the comments of the American Immigration Law Foundation and the American Immigration Lawyers Association in response to the proposed modification of the regulations at 8 CFR Section 3, subpart D, and 8 CFR Section 292.3, regarding professional conduct for practitioners.

AILF is a not-for-profit organization whose mission is to increase public understanding of immigration law and policy, promote public service and professional excellence in the field of immigration law, and advance fundamental fairness in U.S. immigration law and its administration.

AILA is a voluntary bar association of approximately 5,000 attorneys and law professors who practice and teach in the field of immigration and nationality law. AILA members represent businesses, families, and individuals in all aspects of benefits and enforcement proceedings before both the INS and EOIR. AILA’s objectives include the advancement of the law pertaining to immigration and naturalization, to promote reforms and to facilitate justice in the field.

AILA and AILF therefore have a direct interest and concern in the impact of these regulations on practitioners and, more importantly, on their immigrant clients. In addition, AILA and AILF are uniquely qualified, through the range of participation of AILA members in the practice before these agencies, to comment on the impact of the proposed rule.

At the outset, we wish to express our concern that these far-reaching rules have not had sufficient time for the affected public to be notified and to prepare comments on all aspects of their impact. State and local bar associations, for example, have a direct interest in the impact of this rule, and have not been adequately notified. We accordingly ask that the comment time be extended for an additional thirty days, and that a notice to this effect be published in the Federal Register.

Federal Regulation of State-Licensed Attorneys is Inappropriate

In general, we want to express our concern with the overall scheme of attorney disciplinary proceedings, not only as expressed in the proposed regulations, but as they exist currently at 8 CFR Section 292.3, because we believe that the appropriate means for seeking sanctions against attorneys for misconduct is to lodge a complaint with the appropriate licensing authority—the state bar or state professional regulatory agency. Neither the INS nor EOIR “licenses” attorneys to practice, nor should they; and we believe it is inappropriate for federal agencies to unilaterally impose a national disciplinary scheme where the states should have sole jurisdiction.

It may be appropriate to set out rules of conduct and a disciplinary scheme for Accredited Representatives from Recognized Organizations under 8 CFR Section 292.2, since these individuals are in effect “licensed” by the Board of Immigration Appeals and may not otherwise be subject to state regulation; but licensed attorneys should not be governed by such a system.

Since attorney conduct rules vary substantially from state to state, imposing a new federal standard may create unnecessary ethical dilemmas for attorneys attempting to represent their clients ethically and effectively. It is not unlikely that an attorney could find himself in a position where a certain action would be a violation of the federal professional conduct rules, and yet not to take the action would violate state rules. The prospect of such a scenario may deter some attorneys from representing clients in immigration proceedings, which would be harmful to immigrant clients needing legal counsel.

Government Attorneys Should Be Subject to the Same Rules As Private Practitioners

In addition, we are concerned about the lack of parity with respect to treatment of misconduct by private practitioners and by government attorneys. While the regulations set forth an elaborate disciplinary scheme with very specific standards of conduct for private practitioners, the issue of misconduct by government attorneys is relegated to one sentence each at 8 CFR Sections 3.58 and 292.3(h). It is certainly inappropriate and inequitable to presume that a flat advisory that complaints about government attorneys should be directed to the Office of Professional Responsibility.

We certainly believe that the great majority of government attorneys are competent and act in a fair and professional manner; yet it is also true that there are occasions when government attorneys have “engaged in contumelious or otherwise obnoxious conduct.” Further, some government attorneys have on occasion engaged in frivolous behavior, as defined at 8 CFR Section 3.52(j)(1). If such specificity is warranted with respect to private practitioners, it is also warranted with respect to government attorneys. As you know, it is the position of the American Bar Association that the same ethical standards and procedures should apply to government attorneys as to private practitioners.

Beyond these two general criticisms, we have numerous concerns primarily about procedural aspects of the proposed regulatory changes. Overall, we believe the rules are not specific enough about who will be instituting or conducting disciplinary proceedings, and where jurisdiction of the various bodies created begins and ends.

Parallel Disciplinary Schemes are Unnecessary and Improper

Although the intention of creating two parallel disciplinary schemes was to distinguish between matters before EOIR and those before INS, the proposed regulations in fact do not clearly limit the jurisdiction of either one. It would be possible under these rules for complaints about a single matter to be filed and pursued both before INS and before EOIR.

In any event, it is not clear why there is a necessity to create two parallel disciplinary tracks. The supplementary information provided indicates that the intention is to highlight the independence of EOIR from INS, and to provide EOIR with the ability to “police its own tribunals.” First, this is hardly the appropriate vehicle to demonstrate that EOIR is independent of the INS, and there would seem to be no need to do so in any event. Second, EOIR is already capable of policing its courtrooms, since Immigration Judges and the Board already have plenary power to sanction attorneys, and ready access to the existing disciplinary scheme. There is no indication in the supplementary information that the existing system has hindered EOIR in the pursuit of sanctions.

Further, the proposed scheme creates an inherent conflict of interest in EOIR, where that agency’s General Counsel would be charged with prosecuting complaints against attorneys, where the very same agency is also charged with adjudicating those complaints. It certainly seems inappropriate for the prosecutor and judge to work for the same masters.

Disciplinary Hearings Should Be Conducted According to Administrative Procedures Act Standards

The regulations also contemplate that disciplinary hearings for attorneys would be conducted in the same manner as removal hearings, under the same regulations with respect to evidence and procedure. Given that those regulations are quite limited, and are interpreted in widely different ways by different Immigration Judges, such a level of informality could be profoundly unfair. Given the gravity of the charges against practitioners, and the serious—possibly permanent— harm that could befall an attorney charged with misconduct, we believe such hearings should be conducted in conformance with the Administrative Procedures Act, and held before an Administrative Law Judge.

Make-Up of the Disciplinary Committee Should Be More Specific

The proposed regulations also create a new body, a three-member Disciplinary Committee, but they are unfortunately not very specific about exactly who will be appointed to this committee. Although one member must be from EOIR, the regulations do not say whether it should be an Immigration Judge, a Board member, an employee of the General Counsel, or anyone else; and the other two positions could be held literally by anyone, without regard to qualifications or interest.

Appeals Should Be Permitted

The rules further state that the decision of the adjudicating officer in a disciplinary proceeding will be reviewed de novo by the Disciplinary Committee, with no opportunity to present written or oral argument prior to the final administrative decision; and there is explicitly no appeal from the decision of the Disciplinary Committee. Again, given the gravity of such proceedings, those who are subjected to disciplinary proceedings should at a minimum be afforded full appeal rights.

“Ineffective Assistance of Counsel” Findings Should Not Be a Ground for Disciplinary Proceedings

Finally, we are very concerned about one of the new grounds for sanctions that have been added to the regulations, that concerning imposition of sanctions for ineffective assistance of counsel. The supplementary information seems to assert that attorneys consider the defense of ineffective assistance of counsel an easy way to get unfavorable decisions reversed or remanded, and argues that immigrant clients cannot be protected from unscrupulous practitioners otherwise. Again, there is no reason to believe that injured clients find state bar complaint and disciplinary processes inaccessible or inadequate. Certainly, individuals in removal proceedings and otherwise should be protected from incompetent or unscrupulous practitioners, but we remain concerned that this new provision—along with the existing grounds for discipline—will deter some attorneys from representing clients in immigration matters, to avoid the risk of sanctions. This would have a substantial chilling effect on zealous representation of clients.

In closing, we would reiterate our belief that, notwithstanding the above specific comments, the most appropriate disciplinary scheme that a branch of the U.S. government should impose on state-licensed attorneys is none at all; and that in any event, private attorneys and government attorneys should be subject to the same, or parallel, sanctions and procedural systems.

Conclusion

We believe that the chilling effect of these regulations on the ability of the immigration bar to zealously represent its clients will far outweigh the benefits of unauthorized practice and ineffective assistance to the most vulnerable of our society. Accordingly, we ask that these regulations be withdrawn and reworked to reflect the concerns expressed above.

We thank the Service and EOIR for this opportunity to comment and remain available and anxious to discuss the impact of these proposed regulations in future.

Respectfully submitted,

Roy Petty
Executive Director
American Immigration Law Foundation

Jeanne A. Butterfield
Executive Director
American Immigration Lawyers Association