The DOJ's Executive Office for Immigration Review said in the finalized regulation that immigration attorneys, law students and other practitioners would be allowed to provide some services to pro se immigrants in immigration courts and the Board of Immigration Appeals without having to represent them for the entire proceeding, which can often span years. The final rule is intended to broaden the legal resources available to unrepresented noncitizens, the EOIR said.
"For many years, members of the public have requested that the department modify EOIR's regulations to allow practitioners to engage in limited appearances before EOIR on behalf of pro se noncitizens," it said. "The department agrees and acknowledges the importance of allowing practitioners to limit their appearance to document assistance to enhance the efficiency and fairness of immigration proceedings."
According to data from the American Immigration Council, noncitizens who are represented throughout deportation proceedings fare better at every stage of the court process. However, most go without attorneys, with the organization finding that 63% of noncitizens who underwent removal proceedings between 2007 and 2012 were unrepresented.
The policy, which goes into effect mid-November, does not expand on the few circumstances under which practitioners may provide limited in-person representation, the EOIR said.
A draft version of the policy was released in September 2020, and while some commenters said it could help lawyers provide legal services to larger numbers of noncitizens, the National Immigrant Justice Center and the American Immigration Lawyers Association raised concerns that the proposal would deter attorneys from providing pro bono services by expanding the types of procedures requiring lawyers to formally enter their appearance with an immigration court.
The proposal covered anything requiring the "exercise of legal judgment," including offering self-help workshops and pro bono referrals, the advocacy groups pointed out.
The EOIR accepted the criticism in the final rule, saying it retooled the entry of appearance provisions and reworked its definition of the "practice" of law. But the agency said its final definition of "practice" was still broad, as any conduct that qualifies as such may be subject to separate rules governing attorneys' conduct.
"Practitioners may be in violation of the EOIR rules of professional conduct or state rules for providing a noncitizen with erroneous advice regarding the available forms of relief that the noncitizen relied on to their detriment. Therefore, practitioners should be mindful that even if entry of an appearance is not required, their actions might nonetheless be subject to other provisions of the regulations or other rules," the agency said.
Advocacy groups that criticized the earlier proposal could not be reached for comment in response to the final rule.
--Editing by Adam LoBelia.
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