Cite as "AILA InfoNet Doc. No. 98032390 (posted Mar. 23, 1998)"
March 23, 1998
Margaret M. Philbin
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
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
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
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
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
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
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
“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.
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.
American Immigration Law Foundation
Jeanne A. Butterfield
American Immigration Lawyers Association