[Federal Register Volume 75, Number 21 (Tuesday, February 2, 2010)]
[Rules and Regulations]
[Pages 5225-5230]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2149]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 75, No. 21 / Tuesday, February 2, 2010 /
Rules and Regulations
[[Page 5225]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
8 CFR Parts 1 and 292
RIN 1601-AA58
[Docket No. DHS-2009-0077]
Professional Conduct for Practitioners: Rules, Procedures,
Representation, and Appearances
AGENCY: Office of the Secretary, DHS.
ACTION: Interim rule with request for comments.
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SUMMARY: The Department of Homeland Security (DHS) is amending its
regulations governing representation and appearances by, and
professional conduct of, practitioners in immigration practice before
its components to: Conform the grounds of discipline and procedures
regulations with those promulgated by the Department of Justice (DOJ);
clarify who is authorized to represent applicants and petitioners in
cases before DHS; remove duplicative rules, procedures, and authority;
improve the clarity and uniformity of the existing regulations; make
technical and procedural changes; and conform terminology. This rule
enhances the integrity of the immigration adjudication process by
updating and clarifying the regulation of professional conduct of
immigration practitioners who practice before DHS.
DATES: Effective date: This interim rule is effective March 4, 2010.
Comments: Written comments must be submitted on or before March 4,
2010.
ADDRESSES: Comments may be submitted, identified by DHS Docket No. DHS-
2009-0077, by the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Rachel A. McCarthy, Disciplinary Counsel, Office of
the Chief Counsel, U.S. Citizenship and Immigration Services,
Department of Homeland Security, 70 Kimball Avenue, Room 103, S.
Burlington, VT 05403. To ensure proper handling, please reference DHS
Docket No. DHS-2009-0077 on correspondence. This mailing address may
also be used for paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: Rachel A. McCarthy, Disciplinary
Counsel, Office of the Chief Counsel, U.S. Citizenship and Immigration
Services, Department of Homeland Security, 70 Kimball Avenue, Room 103,
S. Burlington, VT 05403.
FOR FURTHER INFORMATION CONTACT: Rachel A. McCarthy, Disciplinary
Counsel, Office of the Chief Counsel, U.S. Citizenship and Immigration
Services, Department of Homeland Security, 70 Kimball Avenue, Room 103,
S. Burlington, VT 05403, telephone (802) 660-5043 (not a toll-free
number).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
interim rule. DHS also invites comments that relate to the economic,
environmental, or federalism affects that might result from this rule.
Comments that will provide the most assistance to DHS in developing
these procedures will reference a specific portion of the rule, explain
the reason for any recommended change, and include data, information,
or authority that support such recommended change.
Instructions: All submissions received must include the agency name
and DHS Docket No. DHS-2009-0077 for this rulemaking. All comments
received will be posted without change to http://www.regulations.gov,
including any personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
II. Background
DHS regulates immigration practitioners before U.S. Citizenship and
Immigration Services (USCIS), U.S. Immigration and Customs Enforcement
(ICE), and U.S. Customs and Border Protection (CBP). DOJ, through the
Executive Office for Immigration Review (EOIR), regulates immigration
practitioners before the Board of Immigration Appeals (Board) and the
immigration courts. When DHS was established in 2003, DOJ duplicated
the regulations on professional conduct for practitioners in the new
chapter V in 8 CFR.
DOJ updated its rules on Professional Conduct for Practitioners--
Rules of Procedures, and Representation and Appearances. 73 FR 44178
(July 30, 2008) (proposed rule); 73 FR 76914 (Dec. 18, 2008) (final
rule). This interim final rule conforms DHS regulations to the DOJ
regulations to maintain a unified, consistent practice; clarifies
existing regulations; and eliminates references to procedural matters
that are solely within the authority of DOJ.
In preparing this interim final rule, DHS reviewed the DOJ proposed
rule, the four public comments submitted on the DOJ proposed rule, and
the DOJ final rule. DHS is adopting this interim final rule for the
reasons stated in the DOJ final rule and also considered its experience
in administering the practitioner discipline process.
III. Changes Made by This Rule
This interim final rule amends DHS regulations at 8 CFR parts 1 and
292 to:
Clarify who is authorized to represent applicants and
petitioners before USCIS, ICE, and CBP;
Conform the rules governing the authority of DHS to
investigate complaints;
Conform disciplinary charges against practitioners who
appear before DHS with the regulations promulgated by DOJ;
Improve the clarity and uniformity of the existing rules;
and
Incorporate miscellaneous technical and procedural changes
necessitated by the creation of DHS.
Definition of attorney. This rule amends the definition of
``attorney'' at 8 CFR 1.1(f), to conform with DOJ's definition at 8 CFR
1001.1(f), by adding the requirement that an attorney must be eligible
to practice law in the bar of any State, possession, territory, or
Commonwealth of the United States, or of the District of Columbia, in
addition to the other requirements for attorneys
[[Page 5226]]
set forth in that regulation. State bar rules uniformly require
licensed attorneys to maintain an active status in order to practice
law; however, there has been some confusion as to the applicability of
that requirement in determining eligibility to appear as a
representative before DHS.
Definition of practice. This rule amends the definition of the term
``practice'' at 8 CFR 1.1(i) to reflect the creation of DHS, the
transfer of the functions of the former Immigration and Naturalization
Service (INS), and to update the definition to eliminate references to
representational activities that occur before DOJ.
Definition of preparation. This rule amends the definition of the
term ``preparation'' at 8 CFR 1.1(k) to reflect the creation of DHS and
the transfer of the functions of the former INS to DHS.
Definition of representation. This rule amends the definition of
the term ``representation'' at 8 CFR 1.1(m) to reflect the creation of
DHS, the transfer of the functions of the former INS, and to eliminate
the reference to representational activities that occur before DOJ.
Representation of others. This rule amends 8 CFR 292.1(a) to
include a reference to the limitations on appearances in application
and petition proceedings in 8 CFR 103.2(a)(3) and amends 8 CFR
292.1(a)(2) to clarify that law students and law graduates as defined
under 8 CFR 1292.1(a)(4) appearing before DHS must be students or
graduates of accredited law schools in the United States. There have
been many instances of graduates of foreign law schools attempting to
represent parties in DHS proceedings under this provision and this
clarification is necessary to ensure that only eligible individuals are
permitted to appear as representatives in immigration proceedings. This
rule also amends 8 CFR 292.1(a)(2) and (6) to reflect the creation of
DHS and the transfer of the functions of the former INS.
Grounds of discipline. This rule adopts the grounds of discipline
in 8 CFR 1003.102 in their entirety and applies those grounds of
discipline to practitioners before DHS. 8 CFR 292.3(b). Under this
provision, DHS may seek disciplinary sanctions against a practitioner
who falls within one or more of the categories enumerated in 8 CFR
1003.102, as revised by DOJ. By adopting all of the grounds of
discipline, this rule clarifies that 8 CFR 1003.102(k) and (l) apply as
grounds for discipline by DHS as well as EOIR. This change will
encourage practitioners to timely appear for scheduled interviews and
other case-related meetings before DHS officials and to properly
represent their clients in DHS proceedings.
Immediate suspension. This rule amends 8 CFR 292.3(c) to clarify
that DHS may petition to the Board for the immediate suspension of an
attorney who, while a disciplinary investigation or proceeding is
pending, has resigned from practice before the highest court of any
State, possession, territory, or Commonwealth of the United States, or
the District of Columbia, or any Federal Court, or who has been placed
on an interim suspension by such body pending a final resolution of the
underlying disciplinary matter. This change would conform the language
in DHS regulations to the DOJ rule.
Preliminary inquiry report. In this rule, 8 CFR 292.3(c)(3), as
revised, limits the circumstances under which DHS will prepare and
serve a copy of a preliminary inquiry report on the practitioner with
the Notice of Intent to Discipline. In summary disciplinary
proceedings, DHS must file a certified copy of the order, judgment and/
or record evidencing the underlying criminal conviction or discipline
with the Board along with the Notice of Intent to Discipline. Current
regulations require that DHS file a preliminary inquiry report with all
Notices of Intent to Discipline. A preliminary inquiry report
summarizes the source of any information uncovered in the investigation
of a disciplinary complaint, including the administrative record of
immigration proceedings, a record of state disciplinary proceedings, or
a record of criminal conviction. In summary disciplinary proceedings
before the Board based upon a conviction for a serious crime,
resignation while a disciplinary investigation or proceeding is
pending, or disciplinary action by a court or other disciplinary
authority under 8 CFR 1003.103(b)(2), the preliminary inquiry report
summarizes records that are included in the disciplinary proceeding
file as attachments to the Petition for Immediate Suspension or the
Notice of Intent to Discipline. In all other cases, DHS will issue a
Notice of Intent to Discipline to the practitioner containing a
statement of the charge(s) and a preliminary inquiry report. The rule
also clarifies that DHS will promptly initiate summary disciplinary
proceedings against any practitioner upon receipt of certified copies
of the required documents.
Public notice of suspension. This rule revises 8 CFR 292.3(h)(3) to
clarify that DHS may publicly post notices of immediate suspension.
This change is necessary to ensure consistency with DOJ regulations at
8 CFR 1003.106(c), which currently provide that notice of disciplinary
sanctions may be posted publicly.
Filing of complaints of misconduct occurring before DHS. This rule
revises the procedures in 8 CFR 292.3(d) for filing complaints with
allegations of professional misconduct by practitioners in matters
before DHS. The changes are necessary to reflect current requirements
resulting from the creation of DHS and its component agencies.
Finally, this rule includes technical changes such as removing
references to the ``Office of the General Counsel of the Service,'' the
``Immigration and Naturalization Service,'' or ``INS,'' and other out-
of-date terms to conform the regulations with current DHS terminology
and structure. This rule corrects technical errors, and implements
minor changes to improve regulatory structure and readability in the
affected sections.
IV. Administrative Procedure Act
This rule relates to agency practice and procedure and is not
subject to the requirements of advance notice and comment under the
Administrative Procedure Act, 5 U.S.C. 553(b)(A). To the extent that
this interim final rule is a rule of agency practice and procedure
under 5 U.S.C. 553(b)(A), DHS is requesting public comments as a matter
of discretion.
Moreover, to the extent that a provision of this rule could be
construed as not being a matter of agency procedure, DHS has determined
that delaying the effect of this rule during the period of public
comment would be impractical, unnecessary and contrary to the public
interest. If the implementation of the provisions of this rule were
delayed pending public comments, the Board of Immigration Appeals and
Adjudicating Officials would be required to conduct practitioner
disciplinary proceedings under one set of regulations for cases
initiated by EOIR disciplinary counsel and under another for cases
initiated by DHS disciplinary counsel. As discussed above, DOJ has
promulgated a final rule amending the relevant rules of professional
conduct for practitioners and representation and appearances. 73 FR
76914 (Dec. 18, 2008). As a result of the amendments made by the DOJ
rule, some provisions of the existing DHS regulations are inconsistent
with the DOJ regulations on the same subject matter for immigration
practitioners in a separate but often overlapping practice area.
Therefore, to avoid this result, DHS has determined that this rule
should be implemented as soon as possible to avoid disparate or
[[Page 5227]]
inconsistent disciplinary standards. This rule conforms to the DOJ
rule. In promulgating this final rule, DHS has considered the record of
proceedings before DOJ, including the public comments.
Accordingly, DHS has determined that it would be impractical,
unnecessary and contrary to the public interest to delay promulgation
of this rule pending review of public comments. 5 U.S.C. 553(b)(B).
This interim final rule is effective 30 days after publication in the
Federal Register. DHS invites comments and will address those comments
in the final rule.
V. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121), requires Federal agencies to consider the
potential impact of regulations on small businesses, small governmental
jurisdictions, and small organizations during the development of their
rules. When a rule is exempt from APA notice and comment requirements,
however, the RFA does not require an agency to prepare a regulatory
flexibility analysis. This rule makes changes for which notice and
comment are not required under the APA; therefore DHS is not required
to prepare a regulatory flexibility analysis for this rule.
VI. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
VII. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by the Small Business
Regulatory Enforcement Act of 1996. 5 U.S.C. 804(2). This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
VIII. Executive Order 12866
This rule is not a ``significant regulatory action'' under
Executive Order 12866, section 3(f). This rule adds no costs to the
agency, imposes no direct costs to the public, has no budgetary impact,
nor does it raise any novel legal or policy issues. Thus, the Office of
Management and Budget (OMB) has not reviewed this rule.
IX. Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
X. Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
XI. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to OMB, for review and approval, any
reporting requirements inherent in a rule. This rule does not impose
any new, or modify an existing, reporting or recordkeeping requirements
under the Paperwork Reduction Act.
List of Subjects
8 CFR Part 1
Administrative practice and procedures, Immigration.
8 CFR Part 292
Administrative practice and procedures, Immigration, Lawyer,
Reporting and recordkeeping requirements.
0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is
amended as follows:
PART 1--DEFINITIONS
0
1. The authority citation for part 1 is revised to read as follows:
Authority: 5 U.S.C. 301; 6 U.S.C. 112; 8 U.S.C. 1101 and 1103.
0
2. Section 1.1 is amended by revising paragraphs (b), (f) (i), (k), and
(m) to read as follows:
Sec. 1.1 Definitions.
* * * * *
(b) The term Act or INA means the Immigration and Nationality Act,
as amended.
* * * * *
(f) The term attorney means any person who is eligible to practice
law in, and is a member in good standing of the bar of, the highest
court of any State, possession, territory, or Commonwealth of the
United States, or of the District of Columbia, and is not under any
order suspending, enjoining, restraining, disbarring, or otherwise
restricting him or her in the practice of law.
* * * * *
(i) The term practice means the act or acts of any person appearing
in any case, either in person or through the preparation or filing of
any brief or other document, paper, application, or petition on behalf
of another person or client before or with DHS.
* * * * *
(k) The term preparation, constituting practice, means the study of
the facts of a case and the applicable laws, coupled with the giving of
advice and auxiliary activities, including the incidental preparation
of papers, but does not include the lawful functions of a notary public
or service consisting solely of assistance in the completion of blank
spaces on printed DHS forms, by one whose remuneration, if any, is
nominal and who does not hold himself or herself out as qualified in
legal matters or in immigration and naturalization procedure.
* * * * *
(m) The term representation before DHS includes practice and
preparation as defined in paragraphs (i) and (k) of this section.
* * * * *
PART 292--REPRESENTATION AND APPEARANCES
0
3. The authority citation for part 292 is revised to read as follows:
Authority: 6 U.S.C. 112; 8 U.S.C. 1103, 1252b, 1362.
0
4. Section 292.1 is amended by:
0
a. Revising paragraph (a) introductory text;
0
b. Revising paragraphs (a)(2) introductory text and (a)(2)(iv);
0
c. Revising paragraph (a)(3)(iv); and by
0
d. Revising paragraph (a)(6).
The revisions read as follows:
Sec. 292.1 Representation of others.
(a) A person entitled to representation may be represented by any
of the following, subject to the limitations in 8 CFR 103.2(a)(3):
* * * * *
[[Page 5228]]
(2) Law students and law graduates not yet admitted to the bar. A
law student who is enrolled in an accredited U.S. law school, or a
graduate of an accredited U.S. law school who is not yet admitted to
the bar, provided that:
* * * * *
(iv) The law student's or law graduate's appearance is permitted by
the DHS official before whom he or she wishes to appear. The DHS
official may require that a law student be accompanied by the
supervising faculty member, attorney, or accredited representative.
(3) * * *
(iv) His or her appearance is permitted by the DHS official before
whom he or she seeks to appear, provided that such permission will not
be granted with respect to any individual who regularly engages in
immigration and naturalization practice or preparation, or holds
himself or herself out to the public as qualified to do so.
* * * * *
(6) Attorneys outside the United States. An attorney, other than
one described in 8 CFR 1.1(f), who is licensed to practice law and is
in good standing in a court of general jurisdiction of the country in
which he or she resides and who is engaged in such practice, may
represent parties in matters before DHS, provided that he or she
represents persons only in matters outside the geographical confines of
the United States as defined in section 101(a)(38) of the Act, and that
the DHS official before whom he or she wishes to appear allows such
representation as a matter of discretion.
* * * * *
0
4. Section 292.3 is revised to read as follows:
Sec. 292.3 Professional conduct for practitioners--Rules and
procedures.
(a) General provisions. (1) Authority to sanction. An adjudicating
official or the Board of Immigration Appeals (Board) may impose
disciplinary sanctions against any practitioner if it finds it to be in
the public interest to do so. It will be in the public interest to
impose disciplinary sanctions against a practitioner who is authorized
to practice before DHS when such person has engaged in criminal,
unethical, or unprofessional conduct, or in frivolous behavior, as set
forth in 8 CFR 1003.102. In accordance with the disciplinary
proceedings set forth in 8 CFR part 1003, an adjudicating official or
the Board may impose any of the following disciplinary sanctions:
(i) Expulsion which is permanent, from practice before the Board
and the Immigration Courts, or DHS, or before all three authorities;
(ii) Suspension, including immediate suspension, from practice
before the Board and the Immigration Courts, or DHS, or before all
three authorities;
(iii) Public or private censure; or
(iv) Such other disciplinary sanctions as the adjudicating official
or the Board deems appropriate.
(2) Persons subject to sanctions. Persons subject to sanctions
include any practitioner. A practitioner is any attorney as defined in
8 CFR 1.1(f) who does not represent the federal government, or any
representative as defined in 8 CFR 1.1(j). Attorneys employed by DHS
will be subject to discipline pursuant to paragraph (i) of this
section.
(b) Grounds of discipline. It is deemed to be in the public
interest for the adjudicating official or the Board to impose
disciplinary sanctions as described in paragraph (a)(1) of this section
against any practitioner who falls within one or more of the categories
enumerated in 8 CFR 1003.102. These categories do not constitute the
exclusive grounds for which disciplinary sanctions may be imposed in
the public interest. Nothing in this regulation should be read to
denigrate the practitioner's duty to represent zealously his or her
client within the bounds of the law.
(c) Immediate suspension and summary disciplinary proceedings; duty
of practitioner to notify DHS of conviction or discipline. (1)
Immediate suspension proceedings. Immediate suspension proceedings will
be conducted in accordance with the provisions set forth in 8 CFR
1003.103. DHS shall file a petition with the Board to suspend
immediately from practice before DHS any practitioner who has been
found guilty of, or pleaded guilty or nolo contendere to, a serious
crime, as defined in 8 CFR 1003.102(h), any practitioner who has been
suspended or disbarred by, or while a disciplinary investigation or
proceeding is pending has resigned from, the highest court of any
State, possession, territory, or Commonwealth of the United States, or
the District of Columbia, or any Federal court; or who has been placed
on an interim suspension pending a final resolution of the underlying
disciplinary matter.
(2) Copies and proof of service. A copy of the petition will be
forwarded to EOIR, which may submit a written request to the Board that
entry of any order immediately suspending a practitioner before DHS
also apply to the practitioner's authority to practice before the Board
and the Immigration Courts. Proof of service on the practitioner of
EOIR's request to broaden the scope of any immediate suspension must be
filed with the Board.
(3) Summary disciplinary proceedings. Summary disciplinary
proceedings will be conducted in accordance with the provisions set
forth in 8 CFR 1003.103. DHS shall promptly initiate summary
disciplinary proceedings against any practitioner described in
paragraph (c)(1) of this section by the issuance of a Notice of Intent
to Discipline, upon receipt of a certified copy of the order, judgment,
and/or record evidencing the underlying criminal conviction,
discipline, or resignation, and accompanied by a certified copy of such
document. Delays in initiation of summary disciplinary proceedings
under this section will not impact an immediate suspension imposed
pursuant to paragraph (c)(1) of this section. Any such proceeding will
not be concluded until all direct appeals from an underlying criminal
conviction have been completed.
(4) Duty of practitioner to notify DHS of conviction or discipline.
Within 30 days of the issuance of the initial order, even if an appeal
of the conviction or discipline is pending, of any conviction or
discipline for professional misconduct entered on or after July 27,
2000, a practitioner must notify DHS disciplinary counsel if the
practitioner has been: Found guilty of, or pleaded guilty or nolo
contendere to, a serious crime, as defined in 8 CFR 1003.102(h);
suspended or disbarred by, or while a disciplinary investigation or
proceeding is pending has resigned from, the highest court of any
State, possession, territory, or Commonwealth of the United States, or
the District of Columbia, or any Federal court; or placed on an interim
suspension pending a final resolution of the underlying disciplinary
matter. Failure to notify DHS disciplinary counsel as required may
result in immediate suspension as set forth in paragraph (c)(1) of this
section.
(d) Filing of complaints of misconduct occurring before DHS;
preliminary inquiry; resolutions; referral of complaints. (1) Filing of
complaints of misconduct occurring before DHS. Complaints of criminal,
unethical, or unprofessional conduct, or of frivolous behavior by a
practitioner before DHS must be filed with the DHS disciplinary
counsel. Disciplinary complaints must be submitted in writing and must
state in detail the information that supports the basis for the
complaint, including,
[[Page 5229]]
but not limited to, the names and addresses of the complainant and the
practitioner, the date(s) of the conduct or behavior, the nature of the
conduct or behavior, the individuals involved, the harm or damages
sustained by the complainant, and any other relevant information. The
DHS disciplinary counsel will notify EOIR disciplinary counsel of any
disciplinary complaint that pertains, in whole or in part, to a matter
before the Board or the Immigration Courts.
(2) Preliminary inquiry. Upon receipt of a disciplinary complaint
or on its own initiative, the DHS disciplinary counsel will initiate a
preliminary inquiry. If a complaint is filed by a client or former
client, the complainant thereby waives the attorney-client privilege
and any other applicable privilege, to the extent necessary to conduct
a preliminary inquiry and any subsequent proceeding based thereon. If
the DHS disciplinary counsel determines that a complaint is without
merit, no further action will be taken. The DHS disciplinary counsel
may, in his or her discretion, close a preliminary inquiry if the
complainant fails to comply with reasonable requests for assistance,
information, or documentation. The complainant and the practitioner
will be notified of any such determination in writing.
(3) Resolutions reached prior to the issuance of a Notice of Intent
to Discipline. The DHS disciplinary counsel may, in his or her
discretion, issue warning letters and admonitions, and may enter into
agreements in lieu of discipline, prior to the issuance of a Notice of
Intent to Discipline.
(e) Notice of Intent to Discipline. (1) Issuance of Notice to
Practitioner. If, upon completion of the preliminary inquiry, the DHS
disciplinary counsel determines that sufficient prima facie evidence
exists to warrant charging a practitioner with professional misconduct
as set forth in 8 CFR 1003.102, it will file with the Board and issue
to the practitioner who was the subject of the preliminary inquiry a
Notice of Intent to Discipline. Service of this notice will be made
upon the practitioner by either certified mail to his or her last known
address, as defined in paragraph (e)(2) of this section, or by personal
delivery. Such notice shall contain a statement of the charge(s), a
copy of the preliminary inquiry report, the proposed disciplinary
sanctions to be imposed, the procedure for filing an answer or
requesting a hearing, and the mailing address and telephone number of
the Board. In summary disciplinary proceedings brought pursuant to
Sec. 292.3(c), a preliminary inquiry report is not required to be
filed with the Notice of Intent to Discipline. Notice of Intent to
Discipline proceedings will be conducted in accordance with the
provisions set forth in 8 CFR 1003.105 and 1003.106.
(2) Practitioner's address. For the purposes of this section, the
last known address of a practitioner is the practitioner's address as
it appears in DHS records if the practitioner is actively representing
an applicant or petitioner before DHS on the date the DHS disciplinary
counsel issues the Notice of Intent to Discipline. If the practitioner
does not have a matter pending before DHS on the date of the issuance
of a Notice of Intent to Discipline, then the last known address for a
practitioner will be as follows:
(i) Attorneys in the United States: The attorney's address that is
on record with a state jurisdiction that licensed the attorney to
practice law.
(ii) Accredited representatives: The address of a recognized
organization with which the accredited representative is affiliated.
(iii) Accredited officials: The address of the embassy of the
foreign government that employs the accredited official.
(iv) All other practitioners: The address for the practitioner that
appears in DHS records for the application or petition proceeding in
which the DHS official permitted the practitioner to appear.
(3) Copy of Notice to EOIR; reciprocity of disciplinary sanctions.
A copy of the Notice of Intent to Discipline shall be forwarded to the
EOIR disciplinary counsel. Under Department of Justice regulations in 8
CFR chapter V, the EOIR disciplinary counsel may submit a written
request to the Board or the adjudicating official requesting that any
discipline imposed upon a practitioner which restricts his or her
authority to practice before DHS also apply to the practitioner's
authority to practice before the Board and the Immigration Courts.
Proof of service on the practitioner of any request to broaden the
scope of the proposed discipline must be filed with the Board or the
adjudicating official.
(4) Answer. The practitioner shall file a written answer or a
written request for a hearing to the Notice of Intent to Discipline in
accordance with 8 CFR 1003.105. If a practitioner fails to file a
timely answer, proceedings will be conducted according to 8 CFR
1003.105.
(f) Right to be heard and disposition; decision; appeal; and
reinstatement after expulsion or suspension. Upon the filing of an
answer, the matter shall be heard, decided, and appeals filed according
to the procedures set forth in 8 CFR 1003.106. Reinstatement
proceedings after expulsion or suspension shall be conducted according
to the procedures set forth in 8 CFR 1003.107.
(g) Referral. In addition to, or in lieu of, initiating
disciplinary proceedings against a practitioner, the DHS disciplinary
counsel may notify any appropriate Federal and/or state disciplinary or
regulatory authority of any complaint filed against a practitioner. Any
final administrative decision imposing sanctions against a practitioner
(other than a private censure) will be reported to any such
disciplinary or regulatory authority in every jurisdiction where the
disciplined practitioner is admitted or otherwise authorized to
practice.
(h) Confidentiality. (1) Complaints and preliminary inquiries.
Except as otherwise provided by law or regulation or as authorized by
this regulation, information concerning complaints or preliminary
inquiries is confidential. A practitioner whose conduct is the subject
of a complaint or preliminary inquiry, however, may waive
confidentiality, except that the DHS disciplinary counsel may decline
to permit a waiver of confidentiality if it is determined that an
ongoing preliminary inquiry may be substantially prejudiced by a public
disclosure before the filing of a Notice of Intent to Discipline.
(i) Disclosure of information for the purpose of protecting the
public. The DHS disciplinary counsel may disclose information
concerning a complaint or preliminary inquiry for the protection of the
public when the necessity for disclosing information outweighs the
necessity for preserving confidentiality in circumstances including,
but not limited to, the following:
(A) A practitioner has caused, or is likely to cause, harm to
client(s), the public, or the administration of justice, such that the
public or specific individuals should be advised of the nature of the
allegations. If disclosure of information is made pursuant to this
paragraph, the DHS disciplinary counsel may define the scope of
information disseminated and may limit the disclosure of information to
specified individuals or entities;
(B) A practitioner has committed criminal acts or is under
investigation by law enforcement authorities;
(C) A practitioner is under investigation by a disciplinary or
regulatory authority, or has committed acts or made omissions that may
reasonably result in investigation by such an authority;
[[Page 5230]]
(D) A practitioner is the subject of multiple disciplinary
complaints and the DHS disciplinary counsel has determined not to
pursue all of the complaints. The DHS disciplinary counsel may inform
complainants whose allegations have not been pursued of the status of
any other preliminary inquiries or the manner in which any other
complaint(s) against the practitioner have been resolved.
(ii) Disclosure of information for the purpose of conducting a
preliminary inquiry. The DHS disciplinary counsel may, in his or her
discretion, disclose documents and information concerning complaints
and preliminary inquiries to the following individuals or entities:
(A) To witnesses or potential witnesses in conjunction with a
complaint or preliminary inquiry;
(B) To other governmental agencies responsible for the enforcement
of civil or criminal laws;
(C) To agencies and other jurisdictions responsible for conducting
disciplinary investigations or proceedings;
(D) To the complainant or a lawful designee; and
(E) To the practitioner who is the subject of the complaint or
preliminary inquiry or the practitioner's counsel of record.
(2) Resolutions reached prior to the issuance of a Notice of Intent
to Discipline. Resolutions, such as warning letters, admonitions, and
agreements in lieu of discipline, reached prior to the issuance of a
Notice of Intent to Discipline, will remain confidential. However, such
resolutions may become part of the public record if the practitioner
becomes subject to a subsequent Notice of Intent to Discipline.
(3) Notices of Intent to Discipline and action subsequent thereto.
Notices of Intent to Discipline and any action that takes place
subsequent to their issuance, except for the imposition of private
censures, may be disclosed to the public, except that private censures
may become part of the public record if introduced as evidence of a
prior record of discipline in any subsequent disciplinary proceeding.
Settlement agreements reached after the issuance of a Notice of Intent
to Discipline may be disclosed to the public upon final approval by the
adjudicating official or the Board. Disciplinary hearings are open to
the public, except as noted in 8 CFR 1003.106(a)(v).
(i) Discipline of government attorneys. Complaints regarding the
conduct or behavior of DHS attorneys shall be directed to the Office of
the Inspector General, DHS. If disciplinary action is warranted, it
will be administered pursuant to the Department's attorney discipline
procedures.
0
5. Section 292.4 is amended by:
0
a. Revising paragraph (a); and
0
b. Revising the term ``Service'' to read ``DHS'' wherever that term
appears in paragraph (b).
The revisions read as follows:
Sec. 292.4 Appearances.
(a) Authority to appear and act. An appearance must be filed on the
appropriate form as prescribed by DHS by the attorney or accredited
representative appearing in each case. The form must be properly
completed and signed by the petitioner, applicant, or respondent to
authorize representation in order for the appearance to be recognized
by DHS. The appearance will be recognized by the specific immigration
component of DHS in which it was filed until the conclusion of the
matter for which it was entered. This does not change the requirement
that a new form must be filed with an appeal filed with the
Administrative Appeals Office of USCIS. Substitution may be permitted
upon the written withdrawal of the attorney or accredited
representative of record or upon the filing of a new form by a new
attorney or accredited representative. When an appearance is made by a
person acting in a representative capacity, his or her personal
appearance or signature will constitute a representation that under the
provisions of this chapter he or she is authorized and qualified to
appear as a representative as provided in 8 CFR 103.2(a)(3) and 292.1.
Further proof of authority to act in a representative capacity may be
required.
* * * * *
Sec. 292.6 [Amended]
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6. Section 292.6 is amended by revising the term ``part 3 of this
chapter'' to read ``8 CFR part 1003''.
Janet Napolitano,
Secretary.
[FR Doc. 2010-2149 Filed 2-1-10; 8:45 am]
BILLING CODE 9110-9B-P