DOJ Issues Final Rule Allowing EOIR Practitioners to Enter Limited Scope Appearances for Document Assistance
The Department of Justice’s (DOJ) final rule regarding limited appearances is welcome news for many legal services providers. Legal services providers have long requested the ability to provide limited-scope representation in immigration court proceedings, as the lack of clear guidance from the agency left many practitioners uncertain as to what was legally and ethically permissible. While many courts informally encouraged limited scope appearances, DOJ’s reactions to these appearances could be harsh and arbitrary. In particular, the DOJ sent the Northwest Immigrant Rights Project, or NWIRP, a “cease and desist” letter in 2017, advising the non-profit organization that limited appearances in immigration court were not permissible and that full representation of every immigrant they represented was required. NWIRP challenged the order, and a federal court issued an injunction preventing DOJ from requiring entry of appearance by an attorney for limited appearances. Despite this win, many legal services providers were fearful of potential repercussions and hesitant to engage in limited scope representation without clear guidance on the scope of what was permissible.
CLINIC has regularly fielded inquiries as to the scope of permissible limited representation in immigration court. A common fact pattern involves a practitioner who is approached by a noncitizen with an upcoming court date in a state across the country. The practitioner wishes to help the noncitizen file for a change of venue but is hesitant to enter an appearance. If that change of venue is denied, the practitioner is obligated to appear at the hearing, potentially at great cost to the organization. Another common scenario involves the desire to help noncitizens timely file asylum applications. It is not uncommon for noncitizens to seek assistance from legal services providers just a few days before their individual one-year filing deadlines. Practitioners often know they do not have the capacity to take on entire cases but want to help these individuals meet their upcoming deadlines. In these two scenarios, can a practitioner assist with the preparation of documents even if they are not the attorney or representative of record?
With the new rule, the answer is now clear. Practitioners may do so, as long as they file a new form identifying their assistance with filings before the court. Practitioners assisting pro se respondents with documents and filings may file new forms EOIR-60 or EOIR-61 for limited appearances before the BIA or immigration courts, respectively. These new forms must be submitted with any filing that the practitioner helped to prepare, such as a change of address, a motion, or an application for relief, with no continuing obligation to that respondent in removal proceedings. Practitioners who will continue to represent respondents beyond document/filing assistance should continue to use forms EOIR-27 (for the BIA) and EOIR-28 (for the immigration courts). Note that limited appearances pertain only to document assistance and do not allow for representation at hearings.
Whether practitioners become representatives of record or limit their appearances to document assistance, they are subject to EOIR’s disciplinary rules and Rules of Professional Conduct. EOIR notes its intent in promulgating the rule is to increase access to legal services for noncitizens, while also diminishing the risk of individuals being exploited by unaccountable “ghostwriters.” The new rule also aids legal services providers in allowing them the flexibility they need to best serve immigrants in their communities.