Cite as "AILA InfoNet Doc. No. 04030165 (posted Mar. 1, 2004)"
March 1, 2004
Via email: email@example.com
Charles Adkins-Blanch, General Counsel
Executive Office for Immigration Review
5107 Leesburg Pike, Suite 2600
Falls Church, VA 22041
Re: Comments to Proposed Rule "Executive Office for Immigration Review Attorney/Representative Registry" RIN 1125-AA39 (68 Fed. Reg. 75160 (December 30, 2003))
Dear Sir or Madam:
The American Immigration Lawyers Association (AILA) submits the following comments on proposed regulations published in the Federal Register on December 30, 2003, that would mandate registration of attorneys and representatives appearing before EOIR. AILA is a voluntary bar association of more than 8,700 attorneys and law professors practicing and teaching in the field of immigration and nationality law.
AILA takes a very broad view on immigration matters because our member attorneys represent tens of thousands of individuals in proceedings and families who have applied for permanent residence for their spouses, children, and other close relatives to lawfully enter and reside in the United States. AILA members also represent thousands of U.S. businesses and industries that sponsor highly skilled foreign professionals seeking to enter the United States on a temporary basis or, having proved the unavailability of U.S. workers, on a permanent basis. Our members also represent asylum seekers, often on a pro bono basis, as well as athletes, entertainers, and foreign students.
Electronic attorney registration may be a prerequisite to updating and modernizing EOIR's information technology ("IT") capacity. However, the proposed regulation fails to take into account some of the practical concerns facing practitioners who represent individuals before EOIR. While several of these issues already exist with the current paper-based EOIR-28 entry of appearance, the majority are currently reviewed and resolved by EOIR clerks and Immigration Judges. The proposal's narrow limitation on information accepted by the system, and the proposed use of electronic means to generate notices and determine scheduling conflicts, will create new problems, some of which could be avoided by expanding both the concept of, and information allowed, regarding a particular case's registered attorney(s) or representative(s). In any event, the registration should not be mandatory, due to the complications discussed below.
- Multiple Attorneys and/or Representatives: While a single attorney may be the norm, in many cases a Respondent may be represented by multiple attorneys from the same firm, co-counsel from different firms, multiple accredited representatives from the same or different agency, or a combination of attorney and accredited representative. This is especially true of low fee and pro bono cases, as well as more complex removal proceedings. Under the current system, in such matters, the EOIR-28 can be annotated appropriately to reflect multiple responsible parties. The proposed procedure allows only for a single individual to be registered as the practitioner on any given matter. The system can and should be designed to accommodate multiple representatives, not only in light of the restriction on appearing before EOIR on a particular matter, but to allow for notification of hearing dates, and to accommodate more complex scheduling conflicts. In a case of multiple representatives, any listed representative should be allowed to appear before EOIR on the Respondent's behalf. Notice of hearing and/or decision information, should be transmitted to all listed representatives. EOIR could easily effect this without significant additional costs, by limiting mailed paper notices to a designated primary or lead representative; because it is essentially with minimal cost, the system should ensure that all other representatives are notified by email.
- Registered Attorney Departs from Firm: The regulation does not adequately anticipate issues that arise when a registered attorney leaves a law firm. Attorneys may "leave" a firm to set up their own practice, join a competitor's firm, move into public interest law or even leave the practice entirely. Each scenario raises distinct issues regarding firm and attorney liability, ethical and bar compliance requirements, confidentiality issues and the like. In most states, a client hires the law firm, however, the ethical obligations may extend to prior counsel even after the attorney leaves the firm. Respondents often fail to appreciate the legalities of a firm's representation agreement, instead seeing a particular individual as "their lawyer," regardless of firm affiliation. In short, protections must be built in to the system to ensure that neither firm nor attorney nor respondent is prejudiced by such a transition.
It will be a great benefit under the proposed system to be able to simply notify or directly amend the electronic record with EOIR, rather than submit new entries of appearance for each and every case where there is a change of address or firm affiliation. In addition to its obvious costs, the current system is ripe for error (either by failing to properly identify and change all records, or the possibility of a data entry error). Unfortunately, the ease with which firm affiliation may be changed raises the more serious representation issue regarding where the legal responsibility to represent the respondent resides. The regulations should, at a minimum, provide for law firm notice when there is any change to registration information, much the way a change to an online account results in a confirming email to the account holder. This type of procedure would ensure proper notice and minimize the possibility of misconduct or misrepresentation. Further, EOIR should ensure that this procedure complies with applicable state licensing rules, as a departing attorney may not be permitted to file under applicable rules. Under the procedures set forth in the regulations, a disgruntled attorney who leaves a firm, and who has no right to a file, can electronically, through a password, change the contact information in the EOIR computer, depriving for a time the responsible law firm of notice, and potentially catching the respondent in the middle. Once an attorney has departed, it will become even more difficult to distinguish between "old" cases and "new" cases; timely dual notice will prevent such difficulties.
- Accredited Representative Leaves Agency. Perhaps more important than the ethical and liability issues raised when an attorney departs a law firm, is the situation where an accredited representative leaves a non-profit agency. It is not uncommon for an agency to lose its sole accredited representative prior to locating a replacement. Currently, in such circumstances the notices will continue to be addressed to and received by the agency, allowing them to assign cases on a case by case or temporary manner to pro bono volunteers, or to inform the respondent that they may proceed pro se or request a continuance until either a new accredited representative is hired or a volunteer lawyer found. Under the proposed system, this will be a great hardship on this underserved community: unlike an attorney, departing accredited representatives are more likely to be making a career change, moving out of the court's jurisdiction or to another agency's employ. Unlike attorneys, Accredited Representatives have neither the ethical obligation nor practical ability to continue representing respondents. Simply notifying the respondent that they are now pro se is no solution; where pro bono volunteers or a new accredited representative is being hired, such notice may create inordinate unnecessary stress. Further, because the agency has no "right" in itself to the information under the current system, there is no way to provide them with even a list of affected cases. Where an agency may be well able to accommodate cases as they arise, either with volunteers or eventual new staff, the cost associated with responding to numerous panicked clients will be an undue burden on already tightly stretched budgets.
- Notice to the Respondent: Currently, where the respondent is already represented, notices are provided only to the attorney of record. AILA assumes that this practice is due in part to both labor and postage costs associated with providing notice and decision information, however, given the minimal (if any) cost of emailing interested parties, we suggest including a respondent email address in the system, as EOIR expands its E-filing program. Such information could be provided directly to the respondent via email, as a courtesy, but should not be a requirement or be considered notice to a represented respondent. Such direct notification, while not likely to be utilized by all represented respondents, would reduce miscommunication between counsel and respondent, reduce the incidence of absentia hearings, and help mitigate the effects of poor or ineffective representation.
- Failure to Allow Dual Notice via Email and Regular Mail. The regulations should allow registrants the option to receive notice by regular mail, even if they have an e-mail address. It is not unusual to have great problems with e-mail, from server malfunctions to viruses to sheer operator error. An email may be inadvertently deleted in a way that a paper notice may not; e-mail is not always accessible. An attorney may be out of the office and not have e-mail access, yet not want to give others in the office that accessibility. It is imperative, given the imperfections of email, that attorneys maintain the ability to opt to receive correspondence by mail, in addition to electronic notification.
- The regulations will chill pro bono representation. When a law school participates in a pro bono project before the immigration court, will the professor be required to register? Will the student register? What about when several students participate in one case? What happens when several attorneys co-counsel in a matter? Both counsel should get notice. The registration process is likely to deter lawyers who don't practice in the immigration arena from becoming involved in a pro bono matter, determining that it just may not be worth the effort. Therefore, registration should not be compulsory.
We urge the Department of Justice to revisit these proposals in light of these comments.
AMERICAN IMMIGRATION LAWYERS ASSOCIATION