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EOIR proposes regulatory change to allow some preparation assistance by representatives without a full appearance

  1. Original Date Announced

    September 30, 2020

    EOIR issues a proposed rule that would allow practitioners to assist pro se individuals with drafting, writing, or filing applications, motions, forms, petitions, briefs, and other documents with EOIR, as long as the nature of the assistance is disclosed on an Notice of Entry of Appearance as Attorney or Representative form (EOIR-27 or EOIR-28, as amended when new regulations are promulgated). The appearance form would have to be accompanied by an attestation that the practitioner explained the limited scope of assistance to the pro se individual and believes she or he understood.

    The rule would also amend the regulatory definitions of ‘‘practice’’ and ‘‘preparation’’ to distinguish between acts that involve the provision of legal advice or exercise of legal judgment (practice) and acts that consist of purely non-legal assistance (preparation). As currently envisioned, "preparation" will be construed as completing forms or applications without providing any advice (e.g., serving purely as a transcriber or translator). The rule admonishes that ghostwriting — i.e., undisclosed legal drafting or application assistance — will be deemed unethical and subject to discipline by EOIR.

    The proposed rule expressly declines to consider limited appearances outside the existing provisions for custody and bond proceedings.

    [ID #1054]

    EOIR Proposed Rule: Professional Conduct for Practitioners-Rules and Procedures, and Representation and Appearances
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  3. Biden Administration Action: Modified

    September 14, 2022

    2022.09.14 Professional Conduct for Practitioners-Rules and Procedures, and Representation and Appearances

    On September 14, 2022, EOIR published a final rule that "permits practitioners to provide document assistance to pro se individuals by entering a limited appearance through new Forms EOIR-60 or EOIR-61, without requiring the practitioner to become the practitioner of record or to submit a motion to withdraw or substitute after completing the document assistance."

    The final rule differs from the proposed rule, in response to comments, in several ways.

    First, the final rule includes a narrower, more precise definition of practice. Commenters had objected to the broader definition of "practice" in the proposed rule because it "could cause any form of education, orientation, or discussion with a pro se noncitizen to be considered “practice” and to trigger the obligation to file an entry of appearance."

    Second, the final rule includes a different definition of "preparation." Commenters had expressed concern that "the proposed rule's definition of “preparation” could result in practitioners not providing assistance to pro se noncitizens" because it blurred the line between practice and preparation and could "discourage practitioners from taking any action that constitutes “preparation” that could also be considered “practice.” The final rule adopts the "existing regulatory definition of “preparation,” and clarifies that: "Even if practitioners engage in 'practice' when providing document assistance, they are only required to enter a limited appearance per a Form EOIR-60 or EOIR-61."

    Third, the final rule made changes to the disciplinary regulations related to filing appearances. The proposed rule had eliminated the phrase "pattern and practice" from the rule of professional conduct governing appearances, and "include[d] language that indicate[d] that failure to file an appearance form even one time could result in disciplinary action." The final rule includes the word "repeatedly" in the rule of professional conduct and clarifies that a single failure to file an appearance is not grounds for disciplinary action.

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Current Status

Partially in effect
September 14, 2022
Acted on by Biden Administration

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