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List of Pro Bono Legal Service Providers for Aliens in Immigration Proceedings

A Proposed Rule by the Executive Office for Immigration Review on 09/17/2014

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Publication Date:Wednesday, September 17, 2014Agencies:Department of JusticeExecutive Office for Immigration ReviewDates:Electronic comments must be submitted and written comments must be postmarked on or before November 17, 2014. The electronic Federal Docket Management System at www.regulations.gov will accept electronic comments submitted prior to midnight Eastern Time at the end of that day.Entry Type:Proposed RuleAction:Notice of proposed rulemaking.Document Citation:79 FR 55662Page:55662 -55673 (12 pages)CFR:8 CFR 10038 CFR 12408 CFR 1241Agency/Docket Numbers:EOIR Docket No. 164PAG Order No. 3463-2014RIN:1125-AA62Document Number:2014-21686Shorter URL:https://federalregister.gov/a/2014-21686

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ACTION
Notice Of Proposed Rulemaking.

SUMMARY

This rule proposes to amend 8 CFR parts 1003, 1240, and 1241 by changing the name of the “List of Free Legal Services Providers” to the “List of Pro Bono Legal Service Providers.” The rule also would enhance the eligibility requirements for organizations, private attorneys, and referral services to be included on the List of Pro Bono Legal Service Providers (List).

UNIFIED AGENDA

List of Pro Bono Legal Service Providers for Aliens in Immigration Proceedings

2 actions from July 2014 to September 2014

  • July 2014
    • NPRM

  • September 2014
    • NPRM Comment Period End


TABLE OF CONTENTSBack to Top



DATES:Back to Top


Electronic comments must be submitted and written comments must be postmarked on or before November 17, 2014. The electronic Federal Docket Management System at www.regulations.gov will accept electronic comments submitted prior to midnight Eastern Time at the end of that day.

ADDRESSES:Back to Top


Please submit written comments to Jeff Rosenblum, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia, 20530. To ensure proper handling, please reference RIN 1125-AA62 or EOIR docket number 164P on your correspondence. You may view an electronic version and provide comments via the Internet by using the www.regulations.gov comment form for this regulation. When submitting comments electronically, you must include RIN 1125-AA62 in the subject box. See Section I of theSUPPLEMENTARY INFORMATION section for more information.

FOR FURTHER INFORMATION CONTACT:Back to Top


Jeff Rosenblum, General Counsel, Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 20530, telephone (703) 305-0470 (not a toll-free call).

SUPPLEMENTARY INFORMATION:Back to Top



I. Public Participation—Posting of Public CommentsBack to Top


Please note that all comments received are considered part of the public record and made available for public inspection online at www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.
If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.
If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on www.regulations.gov.
Personal identifying information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the FOR FURTHER INFORMATION CONTACT section. Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. Comments that will provide the most assistance to the Department of Justice will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that support the recommended change.
For access to the electronic docket to read background documents or comments received, go to www.regulations.gov. Submitted comments may also be inspected at the Executive Office for Immigration Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 20530. To make an appointment, please contact EOIR at (703) 305-0470 (not a toll-free call).

II. Explanation of Proposed ChangesBack to Top


Aliens who are placed in removal proceedings pursuant to section 240 of the Immigration and Nationality Act (Act or INA), or who seek asylum under section 208 of the Act (whether or not in removal proceedings), must be provided with a list of persons who have indicated their availability to represent aliens on a pro bono basis. SeeINA 208(d)(4)(B) (relating to asylum proceedings), and INA 239(a)(1)(E), (b)(2) (relating to removal proceedings). In order to meet this statutory obligation, the Executive Office for Immigration Review (EOIR) publishes the Free Legal Services Providers List (List). [1] The regulations governing the List were promulgated on February 28, 1997, at 62 FR 9071, and are found at 8 CFR 1003.61-1003.65. The List is organized by immigration court location; [2] for each location, the List provides the names of private attorneys and non-profit organizations aliens in proceedings may contact for free legal services. At each location, aliens are given the portion of the List with the providers for that location. The complete List is posted on the EOIR Web site. [3] See www.usdoj.gov/eoir/probono/states.htm.
The List is central to EOIR's efforts to improve the amount and quality of representation before its adjudicators, and it is an essential tool to inform aliens in proceedings before EOIR of available pro bono legal services. However, as explained further below,concerns have been expressed to EOIR by government sources and the public about problems with the List, and EOIR believes it is important to improve the functioning of the List. Therefore, the Department of Justice (Department) is proposing to amend the regulations governing the List, as described further below.
A. “Pro Bono Legal Service Providers”

As the List is intended to provide aliens access to pro bono representation, this proposed rule replaces the term “free legal service providers” with “pro bono legal service providers.” Replacing the word “free” with the term “pro bono” reflects the relevant statutory language (see INA 208(d)(4)(B), 239(a)(1)(E), 239(b)(2)), describes more accurately the nature of the services provided, and will improve the integrity of the List. Further, removing the word “free” will clarify that entities and private attorneys on the List are not necessarily available to work free of charge for every alien regardless of the alien's financial means or the type of legal work involved. Rather, use of the term “pro bono” indicates that such services are for the public good, e.g., to help ensure qualified representation for those indigent aliens who do not have sufficient means to hire a private attorney.
B. Definition of “Pro Bono”

This proposed rule also sets forth a definition of the term “pro bono” to ensure that entities or private attorneys that want to be included on the List understand the kind of services expected from them if they are included on the List. The proposed rule defines “pro bono legal services” at § 1003.61(a)(2) as “those uncompensated legal services performed for indigent aliens or the public good without any expectation of either direct or indirect remuneration, including referral fees (other than filing fees or photocopying and mailing expenses), although a representative may be regularly compensated by the firm, organization, or pro bono referral service with which he or she is associated.” This definition not only reflects the spirit of pro bono representation, but is also consistent with the common law understanding of the terms pro bono and pro bono publico. See, e.g.,Black's Law Dictionary (9th ed. 2009).
Use of the term pro bono indicates that work performed should be for the good of the public from the outset and a commitment to continue such representation throughout the duration of the administrative proceeding before an immigration judge. It is inappropriate for legal service providers to subsequently count as “pro bono” those services provided to paying clients who fall delinquent in paying attorney fees. In addition, EOIR recognizes that some organizations charge reduced or nominal fees in an attempt to provide services to aliens who cannot afford private attorneys but have a modest ability to pay. However, services provided for a reduced or nominal fee do not constitute “pro bono” services under the proposed rule. Although services provided for reduced or nominal fees are not “pro bono” services, organizations that charge such fees to some of their clients are not prohibited from inclusion on the List. As set forth in § 1003.62(a) and (b), such an organization can be included on the List if it provides a requisite amount of pro bono legal services and meets the other requirements for inclusion, even though it charges fees to some of its other clients. [4]
As the foregoing definition reflects, this proposed rule also adopts reference to “pro bono referral services” in place of the current reference to “bar associations.” There is no need to specifically list bar associations since any pro bono programs offered by them would either be in the form of a pro bono referral service or an organization that is eligible to be included on the List under proposed § 1003.62(a), (b), or (c). Adopting the term “pro bono referral services” also broadens eligibility for inclusion on the List to referral services that are not administered by a bar association.
C. Proposed Changes to Preserve the Integrity of the List

EOIR has strongly supported various local efforts to provide pro bono legal services to aliens appearing before the immigration judges, the Board of Immigration Appeals (Board), and the Office of the Chief Administrative Hearing Officer (which adjudicates certain immigration-related civil penalty actions). In April 2000, EOIR established a national pro bono program to improve the development and coordination of these services and, in March 2008, EOIR issued formal policy guidance to immigration judges and immigration court staff on facilitating pro bono legal services. See“Office of Legal Access Programs,”www.usdoj.gov/eoir/probono/probono.htm;“Operating Policies and Procedures Memorandum 08-01: Guidelines for Facilitating Pro Bono Legal Services,” Mar. 10, 2008, www.usdoj.gov/eoir/efoia/ocij/oppm08/08-01.pdf (Last visited July 15, 2014]).
EOIR encourages organizations and private attorneys to publicize their willingness to provide pro bono legal services to aliens appearing before immigration judges by being included on the List. [5] The EOIR Committee on Pro Bono, which was formed in response to Directive 22 of Attorney General Alberto R. Gonzales' “Measures to Improve the Immigration Courts and the Board of Immigration Appeals,” Aug. 9, 2006, http://www.justice.gov/ag/readingroom/ag-080906.pdf (Last visited July 15, 2014), reviewed issues and concerns regarding the need for additional safeguards for the List. In its recommendations to expand and improve EOIR's pro bono programs, the EOIR Committee on Pro Bono (Committee) recommended that EOIR publish new regulations to strengthen the requirements for placing organizations and private attorneys on the List. See“EOIR to Expand and Improve Pro Bono Programs,” Nov. 15, 2007, www.usdoj.gov/eoir/press/07/ProBonoEOIRExpandsImprove.pdf (Last visited July 15, 2014). Specifically, the Committee recommended that private attorneys not be included on the List unless they could demonstrate their inability to provide pro bono legal services through or in association with local pro bono organizations or referral services. The Committee also recommended that the List be monitored periodically to ensure that listed organizations and individuals were indeed providing free legal services.
Since the creation of the List, EOIR has increasingly received complaints from numerous government sources and the public that certain private attorneys may be using the List to advertise or solicit for paying clients, and do not provide legal representation to a significant number of aliens on a pro bono basis or for any particular amount of time. For instance, a private attorney who has declared his or her willingness to represent indigent aliens on a pro bono basis may provide pro bonorepresentation to only one alien and otherwise cease to provide pro bono representation. It is, unfortunately, common for aliens who contact private attorneys on the List to be informed that these attorneys are not available to accept any more pro bono cases, and are only available to represent the aliens for a fee. Though there may be different reasons why attorneys may find themselves unable to accept new pro bono cases at a particular time, there is reason for concern that at least some attorneys may not be using the List for its intended purpose and may be misleading EOIR, the public, and aliens as to their true willingness and availability to provide pro bono services.
EOIR has not received similar complaints regarding organizations or pro bono referral services on the List. This may be because, unlike private attorneys, organizations and pro bono referral services are primarily non-profit operations and are formed specifically to assist indigent and low-income individuals. Thus, although there may be similar potential for abuse, there is less incentive for such entities to use the List improperly. Further, attorneys and accredited representatives who provide pro bono services on behalf of organizations or referral services are typically supervised, unlike some private attorneys on the List.
Finally, the regulations do not currently require organizations or private attorneys who are included on the List to represent any minimum number of indigent aliens on a pro bono basis over a given period of time. Requiring “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” was considered in promulgating the 1997 rule. 62 FR 9072 (Feb. 28, 1997). At that time, EOIR determined that it was not necessary to include such a requirement. Id. However, the rule also stated that “this issue is subject to further review if necessary to eliminate any abuses.”Id.
The proposed rule seeks to prevent in five ways the potential for abuse by all organizations and private attorneys on the List, explained in greater detail below. First, the proposed rule requires that private attorneys on the List, and attorneys and accredited representatives providing pro bono legal services before EOIR on behalf of the organization on the List, not be subject to an order of disbarment under § 1003.101(a)(1) or suspension under § 1003.101(a)(2). Second, the proposed rule provides that attorneys must seek to provide pro bono legal services through or in association with an organization or pro bono referral service if possible. Third, it requires every organization or individual on the List to provide a minimum of 50 pro bono hours a year in each immigration court location where the provider intends to be included on the List. Fourth, this proposed rule allows for and encourages public participation in the application process of an organization, referral service, or private attorney seeking to be included on the List. Finally, once a provider's name is included on the List, the provider must declare under penalty of perjury every three years that the provider is qualified to remain on the List.
The following is a description of the five ways the proposed rule seeks to limit the potential for abuse by the organizations and private attorneys on the List.
1. Professional Conduct Standards

The new eligibility requirements aim to ensure that private attorneys on the List, and attorneys and accredited representatives who provide pro bono legal services for organizations on the List, satisfy EOIR's professional conduct standards. [6]
The proposed rule requires that private attorneys on the List, as well as attorneys and accredited representatives who provide pro bono services before EOIR on behalf of an organization on the List, not be subject to an order of disbarment under § 1003.101(a)(1) or suspension under § 1003.101(a)(2). See proposed § 1003.62(a)(3) (pertaining to organizations recognized under § 1292.2), (b)(4) (pertaining to organizations not recognized under § 1292.2), (d)(1) (pertaining to attorneys). When applying to be included on the List, an attorney must submit a written declaration that he or she is not the subject of an order of disbarment under § 1003.101(a)(1) or suspension under § 1003.101(a)(2). See proposed § 1003.63(d)(7). Similarly, an organization, whether or not recognized, must submit a written declaration that no attorney or accredited representative who will provide pro bono legal services on behalf of the organization before EOIR is the subject of such an order of disbarment or suspension.
Each of the declarations to be made by private attorneys under proposed § 1003.63(d), or organizations under proposed § 1003.63(b), must be made “under penalty of perjury.” Use of this term is consistent with language used in the declarations on Forms EOIR-28 (Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court) and EOIR-27 (Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals), which must be signed and filed each time an attorney or representative enters his or her appearance in a matter before the immigration judge or the Board. See§ 1003.17(a) (requiring the filing of Form EOIR-28 with the immigration court); § 1003.2(g)(1) (requiring the filing of Form EOIR-27 with the Board); § 1003.3(a)(3) (same).
The proposed rule contains no requirement pertaining to other disciplinary actions. Such actions include public or private censure under 1003.101(a)(3) and admonition under § 1003.104(c). An attorney can be included on the List even if he or she was recently subject to such a disciplinary action, and an organization can be included on the List even if an attorney or accredited representative providing pro bono legal services on its behalf before EOIR was recently subject to such an action.
2. Ability To Provide Pro Bono Legal Services in Association With Organizations and Referral Services

The new eligibility requirements for private attorneys further aim to ensure that only those attorneys who are genuinely interested in and capable of providing pro bono services are included on the List.
Many immigration court locations are in areas with developed pro bono programs that are sufficiently capable of assessing the legal claims and financial resources (“intake” and “screening”) of large numbers of aliens in immigration proceedings and coordinating pro bono representation with local private attorneys. These programs often provide private attorneys with specialized legal training, ongoing mentoring, and other assistance in their pro bono cases as a recruitment incentive. Thus, where sufficient local organizations or probono referral programs are available to identify aliens in need of pro bono legal services, as well as recruit and assist private attorneys interested in providing these services, private attorneys are able to provide pro bono services through or in association with such local organizations or referral programs. In such a situation, there is little to no need for private attorneys to be included by name on the List.
However, EOIR recognizes that in some instances, especially for immigration court locations in rural areas or small cities, private attorneys may be the only available and willing sources of pro bono legal services. For instance, some areas may have no pro bono organizations or may have organizations that lack programs to recruit and support pro bono attorneys. In addition, some pro bono organizations offer a limited range of immigration services, and do not offer referral programs for all types of cases before the immigration court.
The Department has designed the proposed rule to allow private attorneys in such circumstances to continue to be included on the List. Accordingly, this rule proposes to amend § 1003.62(d) to state that, to be included on the List, an individual attorney must demonstrate that he or she cannot provide pro bono legal services through or in association with an organization or referral service because: (i) Such an organization or referral service is unavailable; or (ii) the range of services provided by the existing organization(s) or referral service(s) are insufficient to address the needs of the community. Under the “Applications” section at § 1003.63(d)(3), an attorney is further required to submit a written declaration that describes the good-faith efforts he or she made to provide pro bono legal services through an organization or pro bono referral service at each immigration court location where the private attorney is willing to provide pro bono legal services.
3. Minimum Requirement of 50 Pro Bono Hours per Year

This rule proposes a new requirement that, once on the List, an attorney or organization perform at least 50 hours of pro bono legal services annually at each immigration court location where the attorney or organization intends to be included on the List. Seeproposed § 1003.62(a)(1), (b)(2), (d)(2). This requirement aims to ensure that only those organizations and private attorneys genuinely interested in providing pro bono services are included on the List. This requirement applies to organizations as well as private attorneys. As noted above, some organizations charge reduced or nominal fees in an attempt to provide services to aliens who cannot afford private attorney rates but have a modest ability to pay. However, services provided for a fee—even a nominal fee—are not pro bono services, and therefore do not count toward the 50-hour requirement. This requirement does not apply to pro bono referral services; there is no minimum annual amount of pro bono legal services that a referral service must provide.
Only pro bono legal services provided in cases before the immigration court location identified in the attorney's or organization's application count toward the 50-hour requirement. See proposed § 1003.63(a)(3), (b)(1), (d)(1). If an attorney or organization identifies more than one immigration court location, then the attorney or organization must provide at least 50 hours of pro bono legal services in cases before each location. For instance, a provider who seeks to be listed as providing pro bono services before the Arlington Immigration Court and the Baltimore Immigration Court must provide 50 hours of pro bono services before the Arlington Immigration Court and 50 hours of pro bono services before the Baltimore Immigration Court each year. This is intended to ensure, to the maximum extent possible, that attorneys and organizations listed as available to provide pro bono legal services at a particular immigration court location are actually able to provide pro bono services at that location. [7] However, a provider is not required to provide 50 hours of in-court pro bono service per year. Rather, all time spent providing pro bono legal services in cases before a particular immigration court location, including out-of-court preparation time, counts toward the 50-hour requirement.
Due to the new requirement that private attorneys must first seek to provide pro bono services through an organization or referral service, the Department does not believe that this 50-hour requirement will overly burden an individual attorney's ability to provide pro bono services. The individual attorney might commit to provide any number of pro bono hours through an organization or referral service on the List. An individual attorney associated with an organization on the List would not be required to provide 50 hours per year. Rather, the organization as a whole would commit to providing at least 50 hours of pro bono representation per year before each immigration court location identified in the organization's application.
This 50-hour annual minimum is intended to provide a clear measure of the amount of pro bono representation that is acceptable in order for an organization or private attorney to be qualified to be included on the List. A number of state bar associations and private law firms use 50 hours as the recommended annual minimum for pro bono work and this number is also found in the American Bar Association's (ABA) Model Rules of Professional Conduct. [8] The Department believes this prevailing standard strikes the balance between private attorneys whose primary practice is the business of fee-generating clients but who are genuinely interested in providing pro bono services, and organizations that are primarily formed to assist indigent and low-income individuals. The proposed rule also provides that failure to provide the 50-hour annual minimum subjects attorneys and organizations to removal from the List under new § 1003.65.
The Department also recognizes, however, that a particular minimum may be burdensome for some or result in a de facto maximum standard that undermines the purpose of the List. Accordingly, the Department is soliciting comments on whether this 50-hour annual minimum is an acceptable measure of how much pro bono representation an organization or private attorney should provide in order to remain on the List. In particular, the Department welcomes comments on the following questions:
Question 1. Would a 50-hour annual minimum be too demanding for private attorneys who manage a fee-generating practice, but also want to engage in immigration-related pro bono work and cannot provide pro bono service through or in association with an organization or referral service?
Question 2. Conversely, is a 50-hour annual minimum not enough for organizations that seek to be included on the List?
Question 3. Should the standards for organizations and private attorneys differ from one another in any other way? For example, should the rule require that each attorney or accredited representative performing legal services on behalf of an organization perform a certain amount of pro bono work per year, as opposed to requiring that theorganization as a whole perform a certain amount of work?
Question 4. Are there alternative standards that would be more appropriate measures of the level of pro bono representation that an organization or a private attorney should provide in order to be included on the List, e.g., the number of cases accepted or the types of cases accepted?

READ THE REST HERE:https://www.federalregister.gov/articles/2014/09/17/2014-21686/list-of-pro-bono-legal-service-providers-for-aliens-in-immigration-proceedings