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EOIR proposes to mandate electronic filing, change procedures on law student representation

  1. Original Date Announced

    December 4, 2020

    EOIR issues a proposed rule that would expand and make permanent its pilot program for electronic records. Once implemented, immigration courts will be creating an electronic record of proceedings ("eROP") upon the filing of a Notice to Appear (NTA) with the court, and the eROP will thereafter be the official court record. Appeals and motions filed with the BIA will be treated similarly.

    The change in process will apply only to cases initiated after the eROP process has been implemented (except for those cases which participated in the voluntary pilot program and may continue participating voluntarily). Once enacted, electronic filing will be mandatory for represented cases and voluntary for unrepresented cases (with court staff scanning filings made by pro se respondents). Also, DHS will be required to file the NTA electronically.

    The proposed rule would also require filings from law students and law graduates to be made through an attorney or accredited representative who is registered with EOIR. It would also require the supervising attorney or accredited representative to enter an official appearance as counsel and to accompany the law student or law graduate to all immigration court appearances (as opposed to the current practice, which leaves both appearance and attendance to the discretion of the judge or BIA).

    The proposed rule also discusses how service on parties will operate, how system outages will be handled, the rules for signatures, and the process for electronic fee payment.

    [ID #1206]

    EOIR Notice of Proposed Rulemaking on Electronic Filing and Law Student Filing
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  3. Biden Administration Action: Approved/Retained

    December 13, 2021

    2021.12.13 Executive Office for Immigration Review Electronic Case Access and Filing

    On December 13, 2021, the Biden administration published a final rule implementing a mandatory electronic filing program and making the above-specified changes to law student appearances. The final rule responded to public comment and was changed in several ways in response to comments, including relaxing the requirement that law students' supervisors be physically present at hearings conducted by law students. Other changes in the final rule include "allowing filers to include proof of fee payment with DHS when DHS has not provided a fee receipt within the filing deadline" and "broadening immigration judge discretion to accept paper filings from parties otherwise required to file electronically under this rule."

    The rule will go into effect on February 11, 2022.

    View Document

Current Status

Partially in effect
December 13, 2021
Acted on by Biden Administration

Original Trump Policy Status

Status: Proposed
Trump Administration Actions: Forms and Information Collection Rule
Subject Matter: Hearings and Adjudications
Agencies Affected: EOIR

Pre Trump-Era Policies

Commentary

  • Over 63,000 DHS Cases Thrown Out of Immigration Court This Year Because No NTA Was Filed

    The Transactional Records Access Clearinghouse (TRAC) at Syracuse University found that as of the end of September 2022, Immigration Court judges dismissed a total of 63,586 cases because CBP officials had failed to file a Notice to Appear (NTA) in the case with the Immigration Court. CBP agents can enter new cases and schedule initial hearings through the Court's Interactive Scheduling System (ISS), but CBP personnel must still submit a copy of the NTA to the Court, which they have failed to do for many cases.

    Go to article on trac.syr.edu

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