Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39513

returnable, plastic containers to be

shipped with the highly portable cards

is also unacceptable since the

portability of the cards could enable a

handler to evade inspection on a lot or

lots of nectarines or peaches by moving

the cards to uninspected containers, and

could jeopardize the industries’ ‘‘trace

back’’ program. All of these alternatives

were, therefore, rejected.

At the Management Services

Committee meeting, the members

reviewed all subcommittee

recommendations available to them.

The members of the Management

Services Committee include the

chairpersons and vice-chairpersons of

the committees, who generally have

many years experience working in the

industries. They, too, discussed

recommendations of subcommittees and

were free to make alternative

recommendations or revise

recommendations to the committees, as

they reviewed such recommendations.

Like committee meetings,

subcommittee meetings are open to the

public and comments are widely

solicited.

This rule does not impose any

additional reporting and recordkeeping

requirements on either small or large

handlers. As with all Federal marketing

order programs, reports and forms are

periodically reviewed to reduce

information requirements and

duplication by industry and public

sector agencies. In addition, as noted in

the initial regulatory flexibility analysis,

the Department has not identified any

relevant Federal rules that duplicate,

overlap, or conflict with this rule.

However, as previously stated,

nectarines and peaches under the orders

have to meet certain requirements set

forth in the standards issued under the

Agricultural Marketing Act of 1946 (7

U.S.C. 1621 through 1627). Standards

issued under the Agricultural Marketing

Act of 1946 are otherwise voluntary.

In addition, the committees’ meetings

were widely publicized throughout the

nectarine and peach industries and all

interested parties were invited to attend

the meetings and participate in

committee deliberations on all issues.

These meetings are held annually

during the last week of November or

first week of December. Like all

committee meetings, the November 30,

1999, meetings were public meetings

and all entities, both large and small,

were able to express views on these

issues. The committees themselves are

composed of producers.

An interim final rule concerning this

action was published in Federal

Register on March 22, 2000 (65 FR

15205). Copies of the rule were mailed

to all committee members and handlers

by the committee staff on March 22,

2000. Finally, the rule was made

available through the Internet by the

Office of the Federal Register. A 60-day

comment period ending May 22, 2000,

was provided to allow interested

persons to respond to the proposal. One

comment was received during the

comment period in response to the

proposal.

The commenter submitted several

clarifications to the interim final rule.

One clarification dealt with the

inadvertent omission of the ‘‘Grand

Sun’’ nectarine variety from the variety

specific size designations in paragraph

(a)(3) of § 916.356. The clarification also

noted that the interim final rule listed

the variety as ‘‘Gran Sun.’’ As noted

earlier, these corrections relative to the

Grand Sun nectarine variety have been

made.

The commenter also requested name

corrections for two peach varieties.

According to the commenter, the name

‘‘Prima Gattie’’ should be corrected to

read ‘‘Prima Gattie 8,’’ and the name

‘‘Yukon King’’ should be corrected to

read ‘‘Autumn Snow.’’

Accordingly, appropriate changes are

made based upon the comment

received.

A small business guide on complying

with fruit, vegetable, and specialty crop

marketing agreements and orders may

be viewed at the following website:

http://www.ams.usda.gov/fv/

moab.html. Any questions about the

compliance guide should be sent to Jay

Guerber at the previously mentioned

address in the FOR FURTHER INFORMATION

CONTACT section.

After consideration of all relevant

material presented, the information and

recommendations submitted by the

committees, and other information, it is

found that finalizing the interim final

rule, with appropriate changes, as

published in the Federal Register (65

FR 15205, March 22, 2000) will tend to

effectuate the declared policy of the Act.

It is further found that good cause

exists for not postponing the effective

date of this rule until 30 days after

publication in the Federal Register (5

U.S.C. 553) because: (1) Handlers are

already shipping nectarines and peaches

from the 2000 crop; (2) handlers are

already aware of this rule, which was

unanimously recommended at a public

meeting; and (3) a 60-day comment

period was provided for in the interim

final rule.

List of Subjects

7 CFR Part 916

Marketing agreements, Nectarines,

Reporting and recordkeeping

requirements.

7 CFR Part 917

Marketing agreements, Peaches, Pears,

Reporting and recordkeeping

requirements.

Accordingly, the interim final rule

amending 7 CFR parts 916 and 917,

which was published at 65 FR 15205 on

March 22, 2000, is adopted as a final

rule with the following changes:

1. The authority citation for 7 CFR

parts 916 and 917 continues to read as

follows:

Authority: 7 U.S.C. 601–674.

PART 916—NECTARINES GROWN IN

CALIFORNIA

§ 916.356 [Amended]

2. Section 916.356, paragraph (a)(3) is

amended by adding the words ‘‘Grand

Sun’’ between the words ‘‘Early

Diamond’’ and ‘‘Johnny’s Delight.’’

PART 917—FRESH PEARS AND

PEACHES GROWN IN CALIFORNIA

§ 917.459 [Amended]

3. Section 917.459, paragraph (a)(6) is

amended by revising the words ‘‘Prima

Gattie’’ to read ‘‘Prima Gattie 8,’’

removing the words ‘‘Yukon King,’’ and

adding the words ‘‘Autumn Snow’’

between the words ‘‘Autumn Rose’’ and

‘‘Cal Red.’’

Dated: June 21, 2000.

Robert C. Keeney,

Deputy Administrator, Fruit and Vegetable

Programs.

[FR Doc. 00–16151 Filed 6–26–00; 8:45 am]

BILLING CODE 3410–02–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 3 and 292

[EOIR No. 112F; A.G. Order No. 2309–2000]

RIN 1125–AA13

Professional Conduct for

Practitioners—Rules and Procedures

AGENCY: Executive Office for

Immigration Review and Immigration

and Naturalization Service, Justice.

ACTION: Final rule.

SUMMARY: This final rule amends the

rules and procedures concerning

professional conduct for attorneys and

39514 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

representatives (practitioners) who

appear before the Executive Office for

Immigration Review (EOIR) and/or the

Immigration and Naturalization Service

(the Service). This final rule also

includes a provision that was

promulgated as an interim rule on April

6, 1992, pursuant to section 545 of the

Immigration Act of 1990, concerning

sanctions against attorneys or

representatives who engage in frivolous

behavior in immigration proceedings.

This final rule outlines the authority

EOIR has to investigate complaints and

impose disciplinary sanctions against

practitioners who appear before its

tribunals, and clarifies the authority of

the Service to investigate complaints

regarding practitioners who conduct

business with the Service. This final

rule permits EOIR and the Service to

investigate allegations of ethical

misconduct and initiate disciplinary

proceedings more effectively and

efficiently while ensuring the due

process rights of the practitioner. The

final rule also reinstates the Board of

Immigration Appeals as the reviewing

body for disciplinary decisions, instead

of the Disciplinary Committee, as was

set forth in the proposed rule. Both the

public comments and the Department of

Justice’s (Department) reassessment of

the appellate review process resolved

that, as is presently established, Board

review of disciplinary decisions is more

efficient and practical and should

therefore remain unchanged.

Additionally, this final rule enables

efficient resolution of frivolous

complaints and meritorious cases, a

consideration critical to, and in the best

interests of, all parties involved.

EFFECTIVE DATE: July 27, 2000.

FOR FURTHER INFORMATION CONTACT:

Charles Adkins-Blanch, Acting General

Counsel, Executive Office for

Immigration Review, 5107 Leesburg

Pike, Suite 2400, Falls Church, Virginia,

22041, telephone (703) 305–0470, or

Julia A. Doig, Chief Appellate Counsel,

Immigration and Naturalization Service,

5113 Leesburg Pike, Suite 200, Falls

Church, Virginia 22041, telephone (703)

756–6257.

SUPPLEMENTARY INFORMATION: Currently,

the regulations at 8 CFR 292.3 require

the Service to investigate complaints

filed regarding the conduct of attorneys

and representatives (referred to in the

final rule as practitioners) practicing

before both the Service and EOIR. If the

investigation establishes, to the

satisfaction of the Service, that

disciplinary proceedings should be

instituted, the General Counsel of the

Service serves a copy of the written

charges upon the attorney or

representative and upon the Office of

the Chief Immigration Judge. The

present procedure provides for the

government to be represented by a

Service attorney in disciplinary

proceedings before an Immigration

Judge. The decision of the Immigration

Judge may be appealed to the Board of

Immigration Appeals (Board) by either

party.

On January 20, 1998, the Service and

EOIR published a proposed rule in the

Federal Register (63 FR 2901) amending

parts 3 and 292 of the rules and

procedures governing professional

conduct for practitioners who appear

before EOIR, which includes the Board

and the Immigration Courts, as well as

the rules and procedures governing

professional conduct for practitioners

who conduct business before the

Service. The proposed rule included

various grounds of discipline and

procedures for hearings and appeals,

which, although somewhat more

sophisticated, were in many ways

similar to the approach of the current

regulations. The proposed rule was

neither written on a clean slate nor did

it propose to institute a new form of

professional discipline; in fact, it was

merely intended to clarify and improve

the existing procedures and, in

particular, to remove the Service from

the enforcement role with respect to

professional misconduct occurring

before the Board and the Immigration

Courts. The proposed rule did contain a

new procedure for adjudicating

disciplinary complaints. The proposed

process included a hearing by an

adjudicating official appointed by the

Director of EOIR and a report by that

adjudicating official to a three-member

Disciplinary Committee appointed by

the Deputy Attorney General.

This final rule retains the Service’s

investigative and prosecutorial

responsibilities only in disciplinary

proceedings for those practitioners who

conduct business before the Service as

an adjudicative body, e.g., in asylum

proceedings, adjustment interviews, and

visa petition cases, but transfers these

same investigative and prosecutorial

responsibilities to EOIR for practitioners

appearing before the Board and the

Immigration Courts. This change allows

each agency to maintain separate

jurisdictions over practitioners based

upon which agency they appear before,

while permitting both agencies to utilize

the same hearing and appeal process.

This change will result in a fair and

consistent application of the rules.

In response to the proposed

rulemaking, EOIR and the Service

received 491 comments. Identical form

letters from South Florida practitioners

totaled 130, with 17 additional

individual letters from the same region.

These letters account for approximately

30% of the total comments received.

Another 277 names were signed to one

petition-style letter prepared by the

national office of the American

Immigration Lawyers Association

(AILA), accounting for approximately

57% of the total comments received.

Some of the public comments were

supportive; one in particular recounted

the detrimental effect that one

practitioner’s negligence had on two

unsuspecting immigrants. Many others,

however, were opposed to any rule that

would regulate practitioners’

professional conduct. EOIR and the

Service gave full consideration to each

and every public comment submitted

during the comment period. We first

submit some general authorities and

then address the concerns expressed in

the comments in the following passages.

In exercising its plenary powers over

immigration, Congress has granted

express authority to the Attorney

General to ‘‘establish such regulations

* * * as (s)he deems necessary for

carrying out (her) authority’’ under the

laws relating to the immigration and

naturalization of aliens. 8 U.S.C.

1103(a)(3). Congress also provided that

aliens in immigration proceedings

‘‘shall have the privilege of being

represented (at no expense to the

government) by such counsel,

authorized to practice in such

proceedings, as he shall choose.’’ 8

U.S.C. 1362 (emphasis added). In so

doing, Congress vested implied

authority with the Attorney General to

prescribe standards of conduct and rules

of procedure that are applicable to

practitioners who appear before the

Board, the Immigration Courts, and the

Service.

In the proposed rule, EOIR and the

Service noted that the primary purpose

of prescribing rules and setting

standards for determining who may

practice before the Board, the

Immigration Courts, and the Service,

and for adopting procedures for

disciplining those practitioners who fail

to conform to such standards, includes

the protection of the public, the

preservation of the integrity of the

Immigration Courts, and the

maintenance of high professional

standards. EOIR and the Service are

committed to these important public

interest objectives through the fair and

efficient administration of this final

rule.

While most practitioners adequately

represent their clients in immigration

matters, a small minority of

practitioners do not meet the minimum

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39515

standards set forth in this rule and an

even smaller minority may take unfair

advantage of the very clients they have

promised to help. Others have engaged

in conduct that has rendered them unfit

to practice law, as determined by the

state courts which originally licensed

them to practice. The practitioners who

should not, and in fact cannot, be

permitted to continue to practice before

EOIR and the Service are the

practitioners who will primarily be

affected by this rule.

General Comments

A chief concern of many commenters

was that this rule would have a chilling

effect on an immigration practitioner’s

ability to advocate zealously for his or

her client, suggesting that both the First

Amendment right to freedom of speech

and the Sixth Amendment right to

counsel were implicated by such a rule.

A similar majority argued that it is not

the function of EOIR or the Service to

control the conduct of attorneys who

have been admitted to the practice of

law by state courts. Many commenters

expressed concern that sanctions

imposed pursuant to this rule could cut

off a practitioner’s livelihood or

jeopardize his or her professional

reputation, although some

acknowledged a need to protect clients

from unscrupulous immigration

practitioners, citing incompetent and/or

unethical conduct by practitioners. One

commenter was particularly concerned

with protecting non-profit agencies from

the burdens of potentially higher

professional liability policies, more staff

training, and better case-screening

procedures.

Several commenters suggested that

EOIR and the Service pattern the

proposed disciplinary rule after the

disciplinary process applicable to

representatives who appear before

Administrative Law Judges in the Social

Security Administration (SSA) and the

Internal Revenue Service (IRS). Under

such advisement, EOIR and the Service

consulted SSA and IRS regulations in

drafting this disciplinary rule and

adopted many of the provisions

promulgated by those agencies.

The following paragraphs provide a

section-by-section summary of the

comments received, followed by the

Department’s response. Many of the

comments were lengthy and we have

attempted to summarize the

commenters’ views as accurately as

possible. We have responded to all of

the relevant issues raised in the

comments and have highlighted where

revisions have been made to the

proposed rule. Please note that section

numbering in the final rule has been

revised.

Sections 3.101(a) and 3.106(a)—

Adjudicating Officials and Composition

of the Disciplinary Committee

Comments. Some commenters

suggested that an inherent conflict

exists given that adjudicating officials

and the Disciplinary Committee have a

connection to EOIR that taints the entire

disciplinary process. Comments

regarding the composition of the

Disciplinary Committee included the

following: The composition of the

Committee is vague; the pool of possible

members should be specified with term

limits; no qualifications for the

Committee have been specified; the

Committee should be independent of

the Department; the Committee should

include a non-lawyer; the Committee

should include a member of the private

bar; and the EOIR representative should

not serve on the Committee if he or she

is also the complainant in a particular

case. Several commenters also suggested

that an Immigration Judge should not

serve as the adjudicating official in a

case where he or she is also the

complainant, an Immigration Judge

should not serve as the adjudicating

official in any case involving a

practitioner who regularly appears

before him or her, and the disciplinary

hearing should be conducted by an

Administrative Law Judge (ALJ)

pursuant to the Administrative

Procedure Act (APA).

Other commenters assumed that

Immigration Judges would be

prejudiced against aliens while favoring

the government and, therefore, would

not be fair adjudicating officials. Some

commenters noted that the rule provides

no guidelines for appointing

adjudicating officials and no

opportunity to submit briefs or

arguments to the Disciplinary

Committee.

Response. Although some

commenters concluded that the

connection between adjudicating

officials and EOIR taints the

disciplinary process, there was no

specific suggestion of how such a

connection causes conflict or

unfairness. Moreover, there is little

merit to the argument of inherent

conflict, since the Board and

Immigration Judges are all part of the

Department and yet act independently

in fairly adjudicating the nation’s

immigration laws. A connection

between EOIR and the proposed

disciplinary process is not inherently

unfair nor does it create an inherent

conflict. Precedent for such a process

exists within the disciplinary system

used by the Social Security

Administration, which uses its own

ALJs as hearing officers and its own

Appeals Council as a reviewing panel.

However, EOIR and the Service have

revised several of the provisions in this

section in response to the comments

that we received. The rule has been

revised to provide that an Immigration

Judge shall not serve as the adjudicating

official in cases where he or she is also

the complainant in a case

(§ 3.106(a)(1)(i)). Also, an Immigration

Judge shall not serve as the adjudicating

official in any case involving a

practitioner who regularly appears

before him or her (§ 3.106(a)(1)(i)). In

the final rule, the Chief Immigration

Judge will appoint the adjudicating

official in most cases (§ 3.106(a)(1)(i)).

More significantly, in light of the

comments received, EOIR and the

Service have, in the final rule, replaced

the proposed Disciplinary Committee

with the Board in all respects. Since the

Board already has the authority to

implement the existing disciplinary

system under § 3.1(d)(3), and to hear

appeals of disciplinary sanctions under

§ 292.3(b)(1)(vi), revising the final rule

to have appeals go to the Board results

in no change in the Board’s current (and

long-standing) role.

We have identified a number of

reasons for retaining the Board as the

appellate body for disciplinary

decisions made by adjudicating

officials. First, the Board provides

practitioners subject to these

proceedings with an established appeal

process. All of the procedural practices

concerning briefing schedules,

transcripts, motions, and oral arguments

will be consistent for both immigration

proceedings and disciplinary

proceedings. Most practitioners know

the Board’s appeal procedures and will

be familiar with them when appealing

any disciplinary decision. Second, the

Board has the immigration expertise

which may prove critical where a

practitioner’s conduct is intricately

intertwined with the legal issues in an

underlying immigration case. Third, the

Board, unlike the Disciplinary

Committee, has the ability to publish

precedent decisions, thereby providing

practitioners and the public with

authoritative interpretations of the

regulations. Fourth, it is logical for the

Board to exercise ultimate control over

practitioners who appear before EOIR,

and also consistent with state court

practice of having the highest appellate

level oversee the ultimate discipline of

practitioners. Finally, the Board is

structured to hear cases on a regular,

consistent basis and has the support

resources (attorney staff, paralegals,

39516 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

clerks) to fully staff a disciplinary

system.

By retaining the Board’s review

authority, we anticipate the issuance of

timely decisions by members possessing

the requisite legal and procedural

expertise, as well as adjudicatory

experience. This assumption is based on

the fact that the Board has reviewed

disciplinary cases on appeal throughout

the existence of the current disciplinary

program. Some of the comments to the

proposed rule raised opposition to the

‘‘in-house’’ nature of the Disciplinary

Committee. However, given that the

Board is an established independent

adjudicator within the Department, the

revised appeal structure should dispel

any concerns about an ‘‘in-house’’

review.

One commenter suggested

disciplinary hearings should be

conducted pursuant to the

Administrative Procedure Act (APA)

(codified at 5 U.S.C. 551 et seq.), which

primarily regulates the processes of

rulemaking and adjudication by

agencies with substantial independent

authority in the exercise of specific

functions. Determining whether the

APA applies to disciplinary proceedings

conducted under this rule requires

careful consideration of several factors.

As stated above, Congress has granted

authority to the Attorney General to set

standards for determining who may

practice before the Board, the

Immigration Courts, and the Service,

and to prescribe rules of procedure for

disciplining those who fail to conform

to such standards. An agency with the

power to admit practitioners has the

authority to disbar or discipline them

for professional misconduct.

Also, since deportation proceedings

are not subject to the APA, see Marcello

v. Bonds, 349 U.S. 302, 309 (1955)

(Administrative Procedure Act is not

applicable to deportation proceedings

under the Immigration and Nationality

Act); Castillo-Villagra v. INS, 972 F.2d

1017, 1025 (9th Cir. 1992) (Immigration

and Nationality Act, rather than

Administrative Procedure Act, controls

exclusively in deportation proceeding),

disciplinary proceedings pursuant to 8

U.S.C. 1362 historically have not been

conducted under the APA, see Herman

v. Dulles, 205 F.2d 715, 717 (D.C. Cir.

1953) (existing powers of administrative

agencies to control practice by counsel

who appear before them are not changed

by the Administrative Procedure Act,

citing Attorney General’s Manual on the

Administrative Procedure Act, 1947,

p.66). Furthermore, no statutory

provision exists which requires the

adjudication of such disciplinary

proceedings under the APA. See United

States v. Independent Bulk Transport,

Inc., 480 F. Supp. 474, 477 (S.D.N.Y.

1979) (provisions of APA apply only if

another statute requires that they be

utilized); see also Amalgamated Meat

Cutters and Butcher Workmen v.

Connally, 337 F. Supp. 737, 761–62 (D.

D.C.1971).

Moreover, this rule provides ample

protections for practitioners subject to

discipline, analogous to procedures

provided in the APA and consistent

with the delineated public interest

objectives of the Department. Such

protections include timely notice of

hearings and the opportunity to be

heard with respect to the charges

lodged.

In addition, subjecting disciplinary

proceedings to the strictures of the APA

is unnecessary, and it would also be

impractical and burdensome given that

Immigration Judges (who comprise the

largest pool of potential adjudicating

officials) do not adjudicate cases

pursuant to the APA. Finally, as stated

in the supplementary information to the

proposed rule, practitioners subject to

discipline may avail themselves of

judicial review pursuant to 28 U.S.C.

1331 upon issuance of a final

administrative order.

Therefore, in light of the above

considerations and in order to maintain

consistency with, among other things,

the current disciplinary rule, Board

disciplinary decisions that have been

upheld by the Federal courts, and

established Immigration Court practices,

the Department has determined that

disciplinary hearings will be conducted

in the same manner as immigration

proceedings.

The proposed rule contained no

provision for briefs to be submitted or

oral arguments to be heard before the

Disciplinary Committee. However, now

that the rule retains the Board as the

appellate body in disciplinary

proceedings, the regulations that govern

oral argument (see 8 CFR 3.1(e)) and the

submission of briefs on appeal (see 8

CFR 3.3(c)) are incorporated by

reference in the final rule.

Sections 3.103 and 292.3(c)—Immediate

Suspension and Summary Proceeding

Comments. Several commenters

suggested that an immediate suspension

provision could create an unfair and

prejudicial result based on ‘‘a skeletal

complaint filed by a disgruntled client.’’

The commenters expressed concern that

a practitioner could be suspended based

on mere allegations of misconduct. This

presumption is incorrect, as explained

below. Others felt that a criminal

conviction or state bar disciplinary

action should be ‘‘final’’ before an

administrative decision is rendered;

otherwise ‘‘a practitioner will have been

deprived of his or her livelihood during

that period’’ should the conviction or

disciplinary action be overturned or

vacated.

Response: The disciplinary rule

provides that a practitioner may be

subject to immediate suspension and a

summary proceeding based only upon

either (i) disbarment, suspension, or

resignation with an admission of

misconduct as found by a state or

Federal court or (ii) a conviction for a

serious crime. The language in this

provision is similar to that found in the

Rules for Disciplinary Enforcement for

the United States Court of Appeals for

the District of Columbia Circuit, the

District of Columbia Court of Appeals’

Rules Governing the Bar, and the

California Rules of Professional

Conduct.

The immediate suspension provision,

therefore, is designed to protect the

public from practitioners who have a

criminal conviction, are no longer in

‘‘good standing’’ as set forth in 8 CFR

1.1(f), or who have otherwise forfeited

or encumbered their law license. Such

misconduct does not arise from ‘‘a

skeletal complaint filed by a disgruntled

client.’’ Rather, based upon facts proven

by the requisite high standard of proof

(‘‘clear and convincing evidence’’ in

most disciplinary matters and ‘‘beyond

a reasonable doubt’’ in criminal matters)

and applicable law, a state or Federal

court has already made a determination

that the practitioner has engaged in

serious misconduct. As amplified in the

final rule, such a determination, as

evidenced by a certified copy of a court

record or order, brings ‘‘title deeds of

high respect’’ and must be accorded

great deference.

Furthermore, a rule that would permit

a practitioner who has been criminally

convicted of a serious crime to continue

to practice before the Board, the

Immigration Courts, or the Service

pending all appeals of the underlying

matter would expose the court’s

proceedings to the intervention of

disqualified, unfit practitioners and

subject clients to unnecessary risk.

However, recognizing that a practitioner

may seek to appeal such a conviction

during the period of his immediate

suspension, the rule has been amended

so that no final administrative

disciplinary order may be entered until

all direct appeals of the underlying

conviction have been exhausted.

Additionally, the final rule provides

that the Board may set aside an

immediate suspension order ‘‘when it

appears in the interest of justice to do

so.’’

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39517

The final rule provides an attorney

with an opportunity to rebut the

presumed validity of the underlying

disciplinary order in a summary

proceeding by demonstrating that: (1)

The underlying disciplinary proceeding

was so lacking in notice or opportunity

to be heard as to constitute a

deprivation of due process; (2) there was

such an infirmity of proof establishing

the attorney’s professional misconduct

as to give rise to the clear conviction

that the adjudicating official could not,

consistent with his or her duty, accept

as final the conclusion on that subject;

or (3) the imposition of discipline by the

adjudicating official would result in

grave injustice. The proposed rule

denied an attorney admitted in only one

jurisdiction the opportunity to rebut the

presumption of professional

misconduct. This provision has been

eliminated in the final rule. This

procedure comports in part with, among

other jurisdictions, the United States

Supreme Court’s practice in imposing

reciprocal discipline.

Additionally, the proposed rule made

the rebuttable presumption safeguards

available to practitioners in summary

proceedings premised on either

reciprocal discipline for professional

misconduct or conviction of a serious

crime. However, consistent with the

practice of state bars, we have limited

the rebuttable presumption safeguards

so that they apply in reciprocal

discipline matters only, rather than

extend them to criminal conviction

matters, and amended the rule

accordingly. Thus, upon filing a

certified copy of a court record

evidencing a criminal conviction in a

summary proceeding based thereon, the

only issue to be determined shall be the

nature of the discipline to be imposed.

Under the final rule, absent

extraordinary circumstances,

practitioners will be prevented from

launching collateral attacks on criminal

convictions in a summary proceeding.

Section 3.102—Grounds

General Comments. Several

commenters suggested that the rules for

sanctions are too vague and do not

contain the level of detail, specificity,

and explanation provided by the

American Bar Association Model Rules

of Professional Conduct (ABA Model

Rules). However, others agreed that

since the rule closely tracks the ABA

Model Rules and that those rules are

undergoing revision, this Federal rule

should undergo the same revision. Still

other commenters suggested that EOIR

and the Service use the IRS disciplinary

rules as a guide.

Commenters suggested that the rule

be expanded to allow for disciplining

lawyers who assist in the unauthorized

practice of law, e.g., attorneys who sign

their names to forms prepared by nonlawyers without any attorney input or

oversight. Some commenters went on to

suggest that the rule should reach

beyond disciplining lawyers only and

expand to discipline visa consultants

and notarios who engage in the

unauthorized practice of immigration

law, such that any fee collected by a

notario would be considered

‘‘excessively gross’’ and any application,

petition, or brief prepared by a notario

would be considered negligence per se.

Response. As stated in the

supplementary information to the

proposed rule, the revised grounds for

disciplinary sanctions include language,

wherever possible, that is similar, if not

identical to, the ABA Model Rules.

EOIR and the Service gave serious

consideration to the suggestion that a

ground for disciplinary sanctions that

addresses the problem of the

unauthorized practice of law be

included in the final rule. The difficulty

in addressing this problem involves a

jurisdictional issue. The jurisdiction of

this rule is limited to practitioners, i.e.,

attorneys, accredited representatives,

and other persons described in 8 CFR

292.1(a). It cannot reach to persons who

are not within one of these categories,

such as visa consultants or notarios,

because the statutory language at 8

U.S.C. 1362, which establishes the

framework for the attorney discipline

process, refers only to counsel

‘‘authorized to practice in (removal and

appeal) proceedings.’’ However, in

response to the comments, EOIR and the

Service have added an additional

ground for discipline in the final rule

which renders a practitioner subject to

discipline if he or she assists a nonpractitioner in the performance of any

activity that constitutes the

unauthorized practice of law.

Section 3.102(a)—Grossly Excessive

Fees

Comments. Many commenters

expressed concerns that EOIR and the

Service would be ‘‘second-guessing the

amount of work attorneys dedicate to

their cases or the fees they charge.’’

They stated that fees depend on many

subjective factors and further concluded

that only private practitioners have the

experience to know how to

appropriately set fees. Other

commenters pointed out that since fees

are negotiated with a client up front, the

client has the option to go to a different

attorney if he or she finds that the fees

are too high. Some commenters noted

that making a determination of what is

‘‘grossly excessive’’ will require probing

into confidential client information,

while others inquired as to how much

weight will be given to the different

factors used in determining what is

‘‘grossly excessive.’’ While some

commenters concluded that state bar

associations generally do not involve

themselves in financial arrangements

between lawyers and clients, others

suggested that federal regulation is

unnecessary because state bar

associations can review fee disputes.

Still others suggested this was a means

by which EOIR and the Service would

punish a practitioner who has been

successful in defending an immigration

client.

Response. It is important to note that

the primary purpose of this provision is

to protect clients, not to interfere with

attorney-client fee arrangements. The

‘‘grossly excessive fees’’ standard,

which exists in the current rule and was

retained in the proposed rule, is higher

than the ‘‘reasonable fees’’ measure set

out under the ABA Model Rules. The

‘‘grossly excessive’’ standard is similar

to the ‘‘unconscionable’’ standard used

by the IRS in its regulations. See 31 CFR

10.28.

Unlike the general provision in the

existing regulation, the provision in the

final rule enumerates factors to be

considered in determining if a fee is

grossly excessive that are virtually

identical to those found in the ABA

Model Rules. These factors include: The

time and labor required, the novelty and

difficulty of the questions involved, and

the skill requisite to perform the legal

service properly; the likelihood, if

apparent to the client, that the

acceptance of the particular

employment will preclude other

employment by the practitioner; the fee

customarily charged in the locality for

similar legal services; the amount

involved and the results obtained; the

time limitations imposed by the client

or by the circumstances; the nature and

length of the professional relationship

with the client; and the experience,

reputation, and ability of the

practitioner or practitioners performing

the services. As other jurisdictions have

done, a balancing test may be crafted

based upon the various factors in

deciding whether a practitioner has

violated the rule. These factors will

improve the fair assessment of fees by

providing practitioners with notice of

the variables to be used in determining

if a fee is grossly excessive. Investigating

allegations of grossly excessive fees may

require probing into confidential client

information where absolutely necessary,

39518 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

and then only with the client’s

permission.

It is important to note that this rule is

not designed to set fee schedules or

arbitrate fee disputes between

practitioners and their clients. Neither

EOIR nor the Service intends to engage

in ‘‘second-guessing’’ negotiated fee

arrangements. Expert jurists in

immigration law who command higher

fees for their services than other

immigration practitioners would not be

in violation of the regulations based

solely on their fee. However, we are

aware of instances in which

practitioners have preyed on

unsuspecting clients by charging them

exorbitant fees for handling relatively

routine immigration matters, or worse

yet, have charged clients for services

that were never rendered at all.

Protecting clients from practitioners

who charge such grossly excessive fees

is the purpose of this provision.

Section 3.102(b)—Bribes

Comment. One commenter suggested

that expanding the rule to include

‘‘attempt to bribe’’ as well as bribery

was unnecessary and that proving

‘‘attempt to bribe’’ would be difficult

and should not be included in the rule.

Response. This basic language is in

the current rule. Moreover, it would be

inadvisable to limit this rule to only

those persons who successfully bribe an

individual, but not include those who

engage in conduct that constitutes an

attempt to bribe. The act of attempted

bribery is as serious as the act of bribery

itself and certainly compromises the

integrity of the practitioner who engages

in such behavior. Therefore, we did not

adopt this suggestion. It should be noted

that the SSA regulations also have a

similar provision which prohibits any

‘‘attempt to influence, directly or

indirectly, the outcome of a decision,

determination or other administrative

action by offering or granting a loan,

gift, entertainment or anything of value

to a presiding official, Agency employee

or witness who is or may reasonably be

expected to be involved in the

administrative decisionmaking

process.’’ 20 CFR 404.1740(c)(6).

Section 3.102(c)—False Statements and

Willful Misrepresentation

Comments. Several commenters

stated that this provision is too vague

and that the Department should provide

more guidance. Another commenter

suggested that a ground for discipline

should be included to deal with

preparation of documents, pleadings,

papers, etc., that are false and

misleading and are prepared by

attorneys who fail to disclose their

names and addresses as preparers.

Response. The language in this

provision closely resembles the

language in the current regulation,

combined with language from ABA

Model Rule 3.3. The language in the

rule would not preclude pursuing a

practitioner who prepares false or

misleading unsigned documents,

although the ability to prove who

prepared such documents might be

difficult. Immigration Judges across the

country have indicated that the filing of

false or fraudulent documents is a

growing problem. This problem

includes the submission of once valid

documents that have been altered (e.g.,

foreign birth certificates), falsely created

documents (e.g., visas or letters from

religious or political groups), and valid

documents that contain false

information (e.g., asylum applications).

This provision as written is broad

enough to deal with these types of

fraud. It should be noted that the SSA

regulations have a similar provision

which states that an individual may not

‘‘(k)nowingly make or present, or

participate in the making or

presentation of, false or misleading oral

or written statements, assertions, or

representations about a material fact or

law.’’ 20 CFR 404.1740(c)(3).

Section 3.102(d)—Soliciting

Professional Employment

Comment. One commenter suggested

that the language in the rule concerning

solicitation may conflict with state bar

solicitation regulations already in place,

creating difficulties for practitioners

who may wish to advertise in more than

one area.

Response. The language in this

provision closely resembles the

language in ABA Model Rule 7.3 and in

the IRS regulations at 31 CFR 10.30.

This provision is designed to deal with

a growing number of instances that have

been brought to our attention

concerning the use of ‘‘runners’’ in and

around the Immigration Courts. These

persons are not authorized to practice

immigration law themselves but

approach potential clients on behalf of

individuals who are licensed

professionals. As noted in the Comment

to ABA Model Rule 7.3:

There is a potential for abuse inherent in

direct in-person or live telephone contact by

a lawyer with a prospective client known to

need legal services. These forms of contact

between lawyer and a prospective client

subject the layperson to the private

importuning of the trained advocate in a

direct interpersonal encounter. The

prospective client, who may already be

overwhelmed by the circumstances giving

rise to the need for legal services, may find

it difficult fully to evaluate all available

alternatives with reasoned judgment and

appropriate self-interest in the face of the

lawyer’s presence and insistence upon being

retained immediately. The situation is

fraught with the possibility of undue

influence, intimidation, and over-reaching.

Model Rules of Professional Conduct Rule

7.3 cmt. (1993).

Section 3.102(g)—Contumelious or

Obnoxious Conduct

Comments. Many commenters

registered their objections to this

provision. They argued that subjecting

practitioners to discipline based upon

the concept of ‘‘obnoxious behavior’’

would result in practitioners being

unable to represent or defend their

clients zealously and would require

them to be subdued or ‘‘nice’’ in order

not to offend EOIR or the Service. As

one commenter put it: ‘‘(O)ne person’s

obnoxious behavior is another person’s

zealous representation.’’ Another

commenter feared that ‘‘(a) practitioner

could be disciplined if, in the opinion

of the Disciplinary Committee, he talks

too fast or too slow, uses his hands too

much when speaking, or has some

nervous habit.’’

Still another commenter concluded

that the threat of discipline based on

this ground would impair the attorney/

client relationship because practitioners

would be afraid to advocate zealously

on behalf of their clients for fear that

such representation would be perceived

as obnoxious. Some commenters

suggested that it would be impossible

for EOIR and the Service to apply this

rule in a consistent and fair manner,

while others noted that state bars

already deal with ‘‘contumelious’’ or

‘‘obnoxious’’ conduct of practitioners.

Several commenters concluded that

such a disciplinary ground would lead

to frivolous complaints and unnecessary

litigation.

Response: Nothing in this provision is

intended to impinge upon a

practitioner’s zealous representation of

his or her client. However, even zealous

representation does not entitle a

practitioner to engage in contumelious

or obnoxious conduct. Any suggestion

that this provision will be used, as one

commenter suggests, if a practitioner

‘‘talks too fast or too slow, uses his

hands too much when speaking, or has

some nervous habit’’ is without basis.

Behavior disciplined under this

provision will be necessarily extreme

and without any acceptable premise.

This provision is in the current rule

and is retained in the final rule. This

provision is included primarily to

address the type of conduct that would

rise to the level of contempt in a court

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39519

of general jurisdiction. IRS regulations

contain a similar provision for

contemptuous conduct. See 31 CFR

10.51(i). Until recently, Immigration

Judges have not had the authority to

issue contempt citations for the type of

behavior described in this provision.

The only alternative for a judge was to

file a disciplinary complaint with the

Service. Immigration Judges were

recently given contempt authority in

section 304 of the Illegal Immigration

Reform and Immigrant Responsibility

Act of 1996, Pub. L. 104–208 (IIRIRA),

8 U.S.C. 1229a(b)(1); however, this

authority will be exercised only after the

Department issues regulations. It is

expected that the contempt regulations,

once published, will provide that a

practitioner can be disciplined under

the Professional Conduct Rules when

the practitioner has been sanctioned for

contemptuous conduct by an

Immigration Judge pursuant to 8 U.S.C.

1229a(b)(1). A finding of contempt will

become a prerequisite to the imposition

of disciplinary action pursuant to this

subsection. Therefore, the current

language will be retained in the final

rule, pending amendment by the

contempt regulations, which will be

published in the near future.

Section 3.102(h)—Convictions/Crimes

Comments. Some commenters found

the definition of ‘‘serious crime’’ to be

overly broad. While some commenters

argued that a practitioner might lose his

or her livelihood for committing a minor

offense, others concluded that the

conviction that forms the basis for

disciplinary action might have no

bearing on the practitioner’s ability to

practice immigration law. Several

commenters found the retroactivity

aspect of this provision to be unfair, as

well as the notion that a practitioner

who has filed a timely appeal from a

criminal conviction or state disciplinary

finding would still be subject to

discipline under the rule. Several

commenters pointed out that

practitioners in each state will be held

to different standards of conduct

because the definitions of crimes vary

from state to state.

Response: The definition of ‘‘serious

crime’’ is taken from the Rules of

Disciplinary Enforcement for the United

States Court of Appeals for the District

of Columbia. A ‘‘serious crime’’ as

defined in the rule includes ‘‘any

felony.’’ Any practitioner who has been

convicted of a felony has seriously

undermined his professional integrity

and reputation and, as a result, has

jeopardized his ability to continue to

represent aliens before the Board, the

Immigration Courts, and the Service.

Lesser offenses included within the

definition of a ‘‘serious crime’’ are

offenses that involve moral turpitude,

such as fraud, bribery, extortion, deceit,

theft, misappropriation, and false

swearing. A conviction for any of these

crimes calls into question a

practitioner’s ability to perform his or

her duties in a manner which upholds

the integrity of the profession.

Moreover, the magnitude of interests

to be affected by the decisions of EOIR

and/or the Service requires that those

who represent individuals before either

agency be persons whose qualities as

practitioners will secure proper service

to their clients and assist in the

discharge of important agency duties.

Additionally, there is no requirement in

the authorities or by practice that an

incident for which the disciplinary

authority seeks to bring charges must

relate to a proceeding or pending

proceedings.

One commenter noted that the

regulation requiring a practitioner to

notify EOIR of any conviction for a

serious crime is prospective while the

actual ground for disciplinary action

based on a conviction for a serious

crime may be retroactive. Convictions

for serious crimes—whether they occur

before or after the effective date of the

final rule—call into question a

practitioner’s fitness to represent aliens.

A rule that would limit the criminal

conviction ground to only those

practitioners convicted after the

effective date of the rule would

substantially hamper the Department’s

goals of protecting the public and

preserving the integrity of immigration

proceedings. Therefore, § 3.102(h),

which is consistent with the prior rule,

has not been amended because applying

this section only to convictions that

occur after the effective date of the rule

would undermine the Department’s

goals.

Several commenters raised a question

with regard to the practitioner who has

appealed his or her conviction, stating

that such a person should not be subject

to discipline during pendency of an

appeal. We agree. Therefore, we have

added language in §§ 3.103(b) and

292.3(c)(2) that prevents imposition of

final discipline arising out of a criminal

conviction until direct appeals of the

underlying conviction have been

exhausted. Notwithstanding, we note

that given the grave nature of criminal

proceedings and any resulting

conviction or plea, a practitioner may be

subject to an interim order of

suspension under the regulations

pending the outcome of any such

appeal.

Once again, the primary objective of

this rule is to protect the public and

preserve the integrity of adjudicative

immigration processes. Any practitioner

who has been convicted of a serious

crime should be held accountable for

his or her actions, including loss of the

privilege to practice before the Board,

the Immigration Courts, and the Service.

Section 3.102(i)—False Certification of a

Copy of a Document

Comment. One commenter suggested

that the element of intent be added to

the rule.

Response: In response to this

comment, we have revised this ground

by adding the element of intent.

Section 3.102(j)—Frivolous Behavior

Comments. Some commenters

expressed concern that, under this

provision, practitioners might be

inhibited from putting forth an

unpopular or unorthodox interpretation

of the law; an attorney could make a

losing argument for ten years before the

Board and then may prevail in the

eleventh year. It was suggested that an

attorney’s job is to advocate the ‘‘good

points’’ of the law as well as to

challenge the ‘‘wrong’’ side of rules and

decisions. Others feared retribution for

taking actions disagreeable to EOIR or

the Service. Several commenters

believed that the rule should include a

requirement that a practitioner

zealously represent his or her client.

Response: Sanctions for frivolous

behavior are required in section 545 of

the Immigration Act of 1990 (8 U.S.C.

1230(b)(6)). This provision implements

the statutory language and has

previously been included at 8 CFR

292.3(a)(15). The language in this

provision is closely patterned after the

language in Rule 11 of the Federal Rules

of Civil Procedure (FRCP). Precautions

are provided to allow for both advocacy

grounded in fact or warranted by

existing law or a good faith argument for

the extension, modification, or reversal

of existing law or the establishment of

new law. Whereas the IRS regulations

define frivolous as ‘‘patently improper,’’

the language in the final rule reflects a

more specific set of standards and does

not interfere with the zealous advocacy

of a practitioner.

Section 3.102(k)—Ineffective Assistance

of Counsel.

Comments. One commenter suggested

that ‘‘[t]here should be a limit of one

year on the period of time following the

alleged fact for a complaint to be

brought.’’ One commenter concluded

that this provision would inhibit the

zealous representation of immigrants;

39520 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

another commenter went so far as to

conclude that the fear of disciplinary

action ‘‘will keep practitioners from

telling their clients of the mistakes they

have made and instead of fixing the

mistakes, they would let them be.’’

Another commenter suggested that such

a provision may prevent one

practitioner from filing a motion to

reopen based on ineffective assistance of

counsel because the other practitioner

could lose his or her livelihood. Others

concluded that since the ABA Model

Rules do not make malpractice a

disciplinary offense, neither should the

final rule, given that clients already

have the remedy of suing a practitioner

for legal malpractice. Several

commenters believed that the final rule

goes against the traditional rules of

professional conduct, while others felt

that the state bar disciplinary process is

adequate.

Response: The comment concerning

the time period within which a

complaint can be filed based on an

ineffective assistance of counsel claim

suggests that the time period be limited

to one year from the alleged

misconduct, rather than five years as

provided in the rule. However, because

a finding of ineffective assistance of

counsel must be made by the Board or

the Immigration Court before such a

complaint would be considered, and

since many cases take longer than one

year to adjudicate fully, a longer period

of time is required in order to protect

the complaining alien. Also, a shorter

period of time might unfairly discourage

or prevent an alien from bringing a

complaint against his or her former

attorney or accredited representative.

However, in order to strike a balance on

this point, the Department has amended

the rule to require that a complaint

based on this ground be filed within one

year of the finding of ineffective

assistance of counsel made by the Board

or the Immigration Court.

It is worrisome to believe that a

practitioner would risk a client’s case,

and possibly his client’s ability to

remain in this country, and not resolve

a potential problem by choosing instead

to remain idle in order to protect

himself from an ineffective assistance of

counsel claim that would survive only

if due process had been denied as a

result of the practitioner’s conduct, i.e.,

where the proceeding was so

fundamentally unfair that the alien was

prevented from reasonably presenting

his case. See Matter of Lozada, 19 I&N

Dec. 637, 638 (1988); see also RamirezDurazo v. INS, 794 F.2d 491, 499–500

(9th Cir. 1986). Also, one must show

that he was prejudiced by his

representative’s performance. See

Mohsseni Behbahani v. INS, 796 F.2d

249, 251 (9th Cir. 1986).

Therefore, it is unlikely that a

practitioner who has ‘‘made a mistake’’

in a client’s case would allow such a

mistake to languish when he could still

resolve the problem without prejudice

to the client and, in all probability, no

longer be subject to an ineffective

assistance of counsel claim. As is

mentioned throughout the

supplementary information in the

proposed rule, these regulations are

intended to preserve the fairness and

integrity of the adjudicative process,

secure proper service to aliens subject to

proceedings before the Immigration

Courts and the Service, and ensure

minimal qualification standards for

practitioners.

Regarding the commenter who

suggested that malpractice claims

should suffice as a remedy, it is

certainly true that a client may sue a

practitioner for malpractice in such

instances. However, speculation about

the availability of such a legal remedy

should not preclude EOIR or the Service

from pursuing disciplinary action.

While malpractice lawsuits may result

in monetary compensation for a

particular client, they do little to protect

other clients from the same fate.

Section 3.102(l)—Repeated Failure To

Appear for Scheduled Hearings in a

Timely Manner

Comment. One commenter felt the

phrase ‘‘repeatedly fails to appear’’ was

too vague.

Response: This provision does not

define the number of occasions that will

amount to ‘‘repeated’’ failures to appear.

Such a definition is not included in the

rule because choosing an arbitrary

number would hamper the ability to

utilize prosecutorial discretion when

considering a practitioner’s explanation

for his or her absences. In 1998, the

Social Security Administration

published a final rule entitled

‘‘Standards of Conduct for Claimant

Representatives,’’ see 63 FR 41404

(1998), which includes a provision

similar to the provision in the proposed

rule regarding repeated absences from

scheduled hearings. It notes that ‘‘such

conduct adversely affects claimants,

diminishes the ability of the Agency to

operate efficiently and harms other

applicants by disrupting schedules and

work flow.’’ Id. at 41406. For the same

reasons, EOIR and the Service have

added a similar provision in the rule,

with the addition of a ‘‘good cause’’

element.

Section 3.102(m)—Assisting in the

Unauthorized Practice of Law

Comment. Several commenters

suggested that this rule address the

unauthorized practice of law issue. See

General Comments above.

Response. In response to the

comments, EOIR and the Service have

added an additional ground for

discipline in the final rule which

renders a practitioner subject to

discipline if he or she assists a nonpractitioner in the performance of any

activity that constitutes the

unauthorized practice of law. This

ground is a necessary addition to the

rule in order to protect the public from

the mistakes of untrained and

unqualified individuals, as well as the

schemes of unscrupulous immigration

practitioners, and reflects the concerns

of a number of commenters.

Sections 3.104(b) and 292.3(d)(3)—

Preliminary Inquiries

and

Sections 3.105(a) and 292.3(e)(1)—

Notice of Intent To Discipline

Comments. A large number of

commenters were concerned that the

disciplinary process may be used to

intimidate, retaliate, or otherwise harass

practitioners who are successful in

advocating against the government in

immigration proceedings. One

commenter suggested that this rule

might be used to ‘‘intimidate and

control any lawyer who might be so

bold as to file a motion to recuse a judge

(or) seek to enter an objection upon the

record.’’ The fact that the Department

components (EOIR and the Service)

investigate disciplinary cases and issue

Notices of Intent to Discipline prompted

some commenters to raise due process

and conflict of interest issues. One

commenter suggested that in order to

‘‘move cases along,’’ Immigration Judges

will resort to the disciplinary process

and effectively chill aggressive

representation. Another commenter

concluded that this rule is a way for

EOIR to ensure that ‘‘as many noncitizens as possible be deported by

taking the lawyers out of the equation.’’

One commenter suggested that the

Notice of Intent to Discipline be served

by personal service and that the

practitioner should be notified of any

complaint and be given an opportunity

to respond before any charging

document is issued. Several

commenters wanted to see the

government hire an independent entity

to investigate complaints lodged against

private practitioners by government

employees; others felt that the

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39521

government should hire separate

counsel to conduct independent

investigations.

Response: Most, if not all, of the

commenters failed to recognize that the

current disciplinary system is structured

so that the Service (the prosecuting

party in an adversarial immigration

proceeding) is the party bringing the

disciplinary action before EOIR (the

adjudicating body). This structure has

led to revisions in this rule which, in

many cases, transfers responsibility for

issuing charging documents from the

Service to EOIR. The only cases in

which the Service still retains

responsibility for issuing charging

documents concern situations where the

Service serves as the adjudicating body

(i.e., adjustment of status cases, asylum

cases, and some visa petition cases,

among others, but not in matters before

an Immigration Judge or the Board).

This transition of the disciplinary

system from the Service to EOIR is being

made specifically to eliminate the

appearance of any bias or conflict of

interest. The Office of the General

Counsel of EOIR or the Office of the

General Counsel of the Service, not

Immigration Judges or Service trial

attorneys, is responsible for conducting

preliminary inquiries and issuing

charging documents. While the

comments reflect some practitioners’

reluctance to be regulated, there is

simply no basis for the conclusion that

this disciplinary process is biased

against practitioners.

The primary purpose of this rule is to

protect vulnerable aliens from

unscrupulous immigration practitioners

and from those who have engaged in

conduct that raises questions about their

fitness to practice law. Rather than

demonstrating an overabundance of

zeal, some practitioners fail to represent

their clients at all. Numerous

complaints have been reported about

practitioners who fail to appear or to file

essential documents or evidence on

behalf of their clients. The Board

adjudicates numerous motions to

reopen filed before it based on such

claims of ineffective assistance of

counsel. The rule will provide an

effective means to address the mounting

instances of practitioners’ failure to

represent their clients. Many

immigration practitioners have had the

experience of trying to salvage the case

of a client who was harmed by a

previous representative’s inaction. Often

a state bar does not have the expertise

to evaluate or prosecute such cases of

misconduct. The disciplinary rules will

provide an effective means to address

such problems.

Concerning the request that the

practitioner be notified of any

complaints lodged against him or her,

the preliminary inquiry will, in most

cases, afford the practitioner an

opportunity to discuss the complaint

with an investigator. However, if a

complaint is clearly frivolous or without

merit, it is possible that the practitioner

may not be contacted if it is determined

that no action will be taken against him

or her. Additionally, during the

preliminary inquiry phase of a

disciplinary proceeding, EOIR and the

practitioner may reach a resolution or

settlement prior to the issuance of a

Notice of Intent to Discipline. Once the

preliminary inquiry is completed, and if

no such resolution has been reached, a

Notice of Intent to Discipline will then

be issued. It should be noted that the

Notice of Intent to Discipline will be

served by personal service, as defined in

8 CFR 103.5a.

Sections 3.105(d) and 3.106(a)(2)—

Default Provisions

Comments. One commenter stated

that 15 days is an insufficient time

period in which to file a motion to set

aside an order of default for failure to

file an answer or for failure to appear at

a disciplinary hearing. Some

commenters thought that a practitioner

should be allowed to file motions at any

time after an order is issued, or at least

within 180 days of issuance. One

commenter thought that the provision

that requires a practitioner to prove a

negative (i.e., failure to appear due to

exceptional circumstances) is unfair

when the burden of proof is placed on

the practitioner.

Response: It should be noted that

section 6103 of the California Rules of

Professional Conduct provides that if

the accused does not appear at the time

appointed to answer the accusation

without sufficient cause, ‘‘the court may

proceed and determine the accusation

in his absence.’’ Moreover, IRS

disciplinary regulations provide that an

attorney’s ‘‘(f)ailure to file an answer

within the time prescribed. * * * shall

constitute an admission of the

allegations of the complaint and a

waiver of hearing, and the Examiner

may make his decision by default

without a hearing or further procedure.’’

31 CFR 10.58(c). Furthermore, it is

common practice in state bar

disciplinary proceedings to allow both

for default and expedited time frames

when an attorney fails to file an answer

or fails to appear before a disciplinary

hearing panel. In response to the

suggestions that the time period be

expanded for the filing of motions to set

aside, EOIR and the Service balanced

the practitioner’s due process rights

against the primary goals of this

regulation, including the protection of

the public, and concluded that the time

period set forth in the final rule is fair.

Section 3.106(c)—Review Process

Comments. Most commenters

complained that the rule provides no

opportunity for the practitioner to

present a written or oral argument to the

Disciplinary Committee. The remaining

commenters complained that there is no

appeal from the decision of the

Disciplinary Committee.

Response: As stated above, the

proposed Disciplinary Committee has

been replaced by the Board in all

respects regarding this rule. All of the

established appeal procedures in

immigration cases, including the

submission of written briefs and

requests for oral arguments, now apply

also to disciplinary cases on appeal to

the Board. A practitioner who wishes to

obtain judicial review of the Board’s

decision can do so in Federal district

court pursuant to28 U.S.C.1331.

Sections 3.106(d) and 292.3(g)—Referral

to State Bars

Comment. One commenter suggested

that the rule be amended to require all

orders of public discipline to be

reported to the ABA National Lawyer

Regulatory Data Bank and to all

jurisdictions in which the disciplined

attorney is admitted.

Response: We have incorporated into

the final rule a provision for referrals of

public discipline to the ABA National

Lawyer Regulatory Data Bank and to

every jurisdiction in which the

disciplined attorney is admitted.

Section 3.107—Reinstatement

Comments. One commenter believed

that the requirement that a ‘‘practitioner

has the burden of proving that he or she

possesses the moral and professional

qualifications to be reinstated by clear,

convincing, and unequivocal evidence’’

is too ambiguous and does not protect

the public. Another commenter

concluded that it is too difficult to

quantify moral qualifications, while

another suggested that the rule should

provide for a hearing during which the

practitioner must show that he or she is

rehabilitated and no longer poses a risk

to the public, the Board, the

Immigration Courts, and the Service.

Response: The language in this

provision is taken directly from the

Rules of Disciplinary Enforcement for

the United States Court of Appeals for

the District of Columbia Circuit.

However, we have adopted the

suggestion on providing a reinstatement

39522 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

hearing by amending the rule to give the

Board discretion to hold a hearing if the

practitioner meets all of the

reinstatement requirements.

Section 3.108—Confidentiality

Comments. There were some

generalized concerns that these

provisions do not sufficiently protect a

practitioner’s privacy, especially with

regard to disclosures made to law

enforcement authorities, complainants,

and witnesses.

Response: These provisions are

patterned after the Rules of Procedure of

the State Bar of California. The

presumption in the provisions is one of

confidentiality, not disclosure.

Exceptions to confidentiality are based

on ‘‘protection of the public when the

necessity for disclosing information

outweighs the necessity for preserving

confidentiality,’’ and include, but are

not limited to, limited disclosures

necessary to conduct preliminary

inquiries.

Sections 3.109 and 292.3—Discipline of

Government Attorneys/Immigration

Judges

Comments. Many commenters

expressed their concern that the

proposed rule applies only to private

immigration practitioners and not to

Immigration Judges and/or Service trial

attorneys. Since Immigration Judges and

Service trial attorneys are subject to the

disciplinary system which is overseen

by the Department’s Office of

Professional Responsibility (OPR), a

system which regulates all Department

attorneys, many commenters stated that

having two different systems is unfair

and suggested this was a denial of Equal

Protection. Still other commenters

concluded that the rule will hamper

legal advocacy and that the ‘‘major

purpose of the rule is to intimidate

private attorneys out of practice’’ and

‘‘to deny aliens their statutory right to

representation.’’

Response: Congress has broadly

empowered the Attorney General

pursuant to 8 U.S.C. 1103, to ‘‘establish

such regulations * * * and perform

such other acts as she deems necessary

for carrying out her authority’’ under the

provisions of the Immigration and

Nationality Act. Congress delegated its

plenary power over immigration matters

in order to advance, among other

purposes, the public interest in deciding

whether to admit or exclude aliens.

Consistent with Congress’s sweeping

grant of authority to the Attorney

General in immigration matters, ‘‘in any

removal proceedings before an

immigration judge and in any appeal

proceedings before the Attorney General

from such removal proceedings, the

person concerned shall have the

privilege of being represented * * * by

such counsel, authorized to practice in

such proceedings, as he shall choose’’

(emphasis added). 8 U.S.C. 1362. Such

statutory authority, which serves as a

primary basis for this disciplinary

regulation, refers exclusively to counsel

for individuals subject to such

proceedings, not to Immigration Judges

or attorneys for the government.

The Supreme Court has held that

‘‘where the empowering provision of a

statute states simply that the agency

may ‘make * * * such rules and

regulations as may be necessary to carry

out the provisions of (an) act,’ * * * the

validity of a regulation promulgated

thereunder will be sustained so long as

it is ‘reasonably related to the purposes

of the enabling legislation.’ ’’ Thorpe v.

Housing Authority of the City of

Durham, 393 U.S. 268, 280–81 (1969).

The general authority upon which we

rely herein to impose disciplinary

sanctions properly gives heed to

Congress’ enabling language and public

interest purposes. Moreover, we view

the need to safeguard adjudicative

processes, fairly decide cases, and

protect the public through

implementation of this disciplinary

regulation as consonant with Congress’s

public interest intent. Contrary to the

assertion that such regulations will

hamper counsel in rendering legal

assistance to aliens, we believe that

these rules will strengthen the

effectiveness of representation and

provide fairer adjudications.

As one court stated in reference to the

foregoing express grants of authority

from Congress, ‘‘an agency empowered

to prescribe its own rules has the

implied power to determine who can

practice before it.’’ Koden v. United

States Dep’t of Justice, 564 F.2d 228, 234

(7th Cir. 1977). In that case, the Seventh

Circuit held that the authority bestowed

on the Attorney General is more than

adequate to empower, expressly or

impliedly, an agency to set disciplinary

standards applicable to representatives.

The Koden court upheld a disciplinary

regulation substantially similar to this

one that had existed for over 25 years

(at the time of the court’s decision) and

applied only to private immigration

practitioners.

Additionally, since 1975, OPR has

had responsibility for investigating

allegations of misconduct against any of

the Department’s lawyers, which today

number over 9,000 individuals,

including Immigration Judges and

Service trial attorneys, where such

allegations relate to the exercise of their

authority to investigate, litigate,

adjudicate, or provide legal services. See

28 CFR 0.39. Such employees are also

subject to the jurisdiction of the

Department’s Office of Inspector

General. Among other rules, regulations,

and orders, Department attorneys must

abide by the standards of conduct

applicable to executive branch

employees and the Department’s

supplemental standards of conduct. See

5 CFR part 2635 et seq.; 5 CFR part 3801

et seq.

Such comprehensive standards and

procedures, under the auspices of OPR

and the Office of Inspector General, are

equally, if not more, rigorous than those

provided in this rule. They provide

separate means for seeking discipline of

Immigration Judges and Department

attorneys.

It should also be noted that on

October 21, 1998, Congress amended

Chapter 31 of Title 28 of the United

States Code by adding section 530B in

Public Law 105–277. This amendment,

which went into effect on April 19,

1999, subjects Department attorneys to

state laws and rules, and local federal

court rules, governing attorneys in each

state where such attorneys engage in

their duties, to the same extent and in

the same manner as other attorneys in

that state. See 64 FR 19273 (1999)

(Interim Rule on Ethical Standards for

Attorneys for the Government).

Definitions

Comment. One commenter pointed

out that the rule uses the term

‘‘practitioner’’ whereas the current rule

uses the terms ‘‘attorney’’ and

‘‘representative.’’

Response: Use of the new term

‘‘practitioner’’ in the proposed rule is

simply for convenience when referring

to both attorneys, as defined in 8 CFR

1.1(f), and representatives, as defined in

8 CFR 1.1(j).

Disciplinary System Involving Both

EOIR and INS

Comments. Many commenters

expressed concerns over the two

parallel proceedings outlined in the

proposed rule. They felt that the

jurisdiction between EOIR and the

Service is unclear, that the two systems

are not necessary, that practitioners will

have to be familiar with the professional

conduct requirements of two agencies,

and that two separate complaints could

result in two punishments. Another

commenter thought that the Board and

Immigration Judges already have

‘‘plenary power to sanction attorneys.’’

Response: Some commenters have

characterized this rule as two parallel

disciplinary systems with the potential

for two disciplinary actions for the same

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39523

misconduct. This notion is incorrect;

only one disciplinary system exists and

the delineations of authority are clear

under the regulation. If a complaint

concerns a practitioner’s conduct before

the Service in its adjudicative capacity

(i.e., adjustment of status cases, asylum

cases, visa petition cases), then the

complaint should be filed with the

Service, which will conduct a

preliminary inquiry. If, however, the

basis of the complaint concerns a

practitioner’s conduct before EOIR (i.e.,

the Board or the Immigration Courts),

then the complaint should be filed with

EOIR, which will conduct a preliminary

inquiry. EOIR’s jurisdiction to

investigate and prosecute disciplinary

cases will not extend to cases over

which the Service has adjudicatory

authority and, likewise, the Service’s

jurisdiction to investigate and prosecute

disciplinary cases will not extend to

cases over which EOIR has adjudicatory

authority.

Between EOIR and the Service, there

remains an expectation of cooperation

and communication in instances where

it is unclear which agency should take

responsibility for investigating a

complaint, i.e., if a complaint alleges

misconduct that occurred before both

agencies. Each agency is required to

serve a copy of a Notice of Intent to

Discipline on the other agency.

Moreover, each agency may submit a

written request to the adjudicating

official asking that any discipline

imposed upon a practitioner that

restricts his or her authority to practice

before one agency also apply to his or

her authority to practice before the other

agency. This will avoid the situation in

which a practitioner could be forced to

go through two separate disciplinary

hearings for the same misconduct. It

also gives the adjudicating official the

discretion to prohibit a practitioner from

continuing to practice before one agency

pending suspension or exclusion from

the other. Without this provision, for

example, a practitioner who appears

before EOIR and who has been

suspended for assisting others in the

unauthorized practice of law could

continue to practice before the Service

unless and until the Service conducted

its own separate proceeding.

Contrary to one commenter’s

suggestion, the Board and Immigration

Judges do not have ‘‘plenary power to

sanction attorneys.’’ Until the contempt

rule is final (see discussion above), the

revised set of grounds as set forth in this

disciplinary regulation is the only

means by which the Board and

Immigration Judges may seek to remedy

related professional misconduct.

Procedures

Comments. Some commenters felt

that there should be a right to discovery

while others felt that the Federal Rules

of Evidence (FRE) and/or the Federal

Rules of Civil Procedure (FRCP) should

be used in disciplinary proceedings.

One commenter asked under what

circumstances costs would be assessed

to the practitioner. Another commenter

requested that hearings be held in the

practitioner’s city of practice and that a

hearing should be set automatically,

regardless of whether a hearing has been

requested or the practitioner has failed

to file an answer to the Notice of Intent

to Discipline. One commenter suggested

that the hearing should be closed to the

public. Others suggested that the 30-day

time period to file an answer be

extended to 60 days. Some commenters

would like to see the Disciplinary

Committee establish rules of procedure.

Other commenters opined that the

complaining party must have standing

to bring a complaint, e.g., the

complainant must be an ‘‘aggrieved

party’’ who can show harm or damage.

One commenter questioned how

ongoing cases would be handled under

the new rule.

Response: Disciplinary proceedings

are designed to be conducted under the

same procedures which govern

deportation and removal hearings in

Immigration Courts, practices which are

familiar to both adjudicating officials

and practitioners. The proposed rule

required the Director of EOIR not only

to appoint the adjudicating official, but

also to designate the time and place of

the hearing. After further review,

however, this provision has been

amended in several respects.

First, the final rule now gives the

Chief Immigration Judge the authority to

appoint an Immigration Judge as the

adjudicating official. At the request of

the Chief Immigration Judge or in the

interest of efficiency, however, the

Director of EOIR may appoint an

Administrative Law Judge as an

adjudicating official. Second, the

adjudicating official will designate the

time and place of the hearing. This

amendment was added to give the

adjudicating official more control over

the scheduling of the hearing. Third, the

rule has been amended to require the

adjudicating official to designate the

place of the hearing ‘‘with due regard to

the location of the practitioner’s practice

or residence, the convenience of

witnesses, and any other relevant

factors.’’ Although it is most likely that

the adjudicating official will select a site

for the hearing which is convenient for

the practitioner, this amendment does

not require that such a selection be

made since there may be other

important factors which might dictate

that another site is preferable. For

example, it is reasonable to predict that

disciplinary proceedings will most

likely be held in one of EOIR’s

Immigration Courts, where such

hearings are presently held, so that

proper administrative support, such as

clerks and interpreters, are available.

Selection of such a hearing site might

require the practitioner to travel to that

location.

Finally, the final rule has eliminated

the terms ‘‘Assistant Chief Immigration

Judge’’ and ‘‘Board Member’’ as persons

who may be appointed as adjudicating

officials. The term ‘‘Assistant Chief

Immigration Judge’’ was deleted because

it was determined to be unnecessary,

since the term ‘‘Immigration Judge’’ is

deemed to include ‘‘Assistant Chief

Immigration Judge.’’ The term ‘‘Board

Member’’ was deleted since, under the

final rule, the Board is now the

appellate reviewing body for

disciplinary appeals, thereby

eliminating the possibility that Board

Members could be appointed as

adjudicating officials.

The rule requires the practitioner to

request a hearing if he or she so desires,

but does not make such a hearing

mandatory. There may be reasons why

a practitioner may not want a hearing,

e.g., the practitioner intends to settle the

case, does not want publicity, or does

not wish to expend the time and money

necessary to prepare for a hearing. To

give the practitioner the option of

having a hearing gives him or her more

control over the progression of the case.

Further, the rule does not allow for a

hearing for a practitioner who fails to

file an answer to a Notice of Intent to

Discipline.

One commenter suggested that all

hearings be closed. However, the

prevailing procedure among state bars

mandates that disciplinary hearings be

open to the public once a charging

document has been filed. The public has

a right to know what transpires in such

cases, and the notion of conducting

disciplinary hearings behind closed

doors may foster ignorance and raise

doubts as to the nature of the

proceedings. It should be noted that

there are two exceptions in the rule to

a public hearing. These include

limitations of the physical facilities and/

or the need to protect witnesses, parties,

or the public interest.

Another commenter suggested the

time period to file an answer should be

extended from 30 to 60 days. In order

for disciplinary actions to be most

effective, it is imperative that cases be

39524 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

resolved in a timely manner. To provide

a practitioner with 30 days to file an

answer is reasonable.

Another commenter stated that a

complaining party must have standing

and must be an ‘‘aggrieved party’’ who

can show harm or damage. However,

there is no reason to limit the ability of

anyone to file a complaint. The degree

to which a complainant has been

harmed will go to the merits of the case

itself, but should not preclude an

individual from filing a complaint.

Moreover, it is anticipated that

complaints may come from

adjudicators, Service personnel, aliens,

or practitioners themselves, all of whom

may have first-hand knowledge of

practitioner misconduct.

One commenter questioned when

costs might be assessed against the

practitioner. Assessment of costs is not

available in Immigration Court or at the

Board, and benefits such as the use of

interpreters have not previously been

charged against a party. In an effort to

keep disciplinary proceedings

procedurally similar to Immigration

Court practice, the agency has decided

not to assess costs in disciplinary

proceedings. Therefore, the provision

concerning costs has been deleted in the

final rule.

With regard to ongoing cases in which

a charging document has been issued

and filed with the Office of the Chief

Immigration Judge prior to the effective

date of these regulations, such matters

will proceed to a final disposition under

the previous regulations.

State Bars Are Appropriate Entities To

Handle Complaints

Comments. Many commenters said

that it is inappropriate for federal

agencies to unilaterally impose a

national disciplinary scheme where

states should have sole jurisdiction and,

further, that federal regulations

concerning discipline will cause

confusion and uncertainty with regard

to state rules. Others objected that the

rule subjects practitioners to being

disciplined twice for the same

conduct—once by the federal

government and once by the state bar.

Others believed that this rule is an

unnecessary and impermissible

intrusion into the state law licensure

process and ‘‘to bar a lawyer from

practice before an agency is unheard

of.’’

Response: In response to the

comments that claim that this regulation

is an ‘‘impermissible intrusion into the

state law licensure process’’ and that it

is ‘‘inappropriate for federal agencies to

unilaterally impose a national

disciplinary scheme where states should

have sole jurisdiction,’’ we refer

commenters to the U.S. Supreme Court

decision in Sperry v. Florida, 373 U.S.

379 (1963). In that case, the state of

Florida sought to enjoin a non-attorney

registered to practice before the United

States Patent Office from preparing and

prosecuting patent applications in

Florida because he was not a member of

the Florida Bar. The Supreme Court

held that the federal government has

preemptive powers over states’

legislative and judicial authorities when

acting under valid federal regulations.

As noted above in the supplementary

information, EOIR and the Service

maintain that under the broad

rulemaking authority of the Attorney

General and the federal government’s

preemptive powers, EOIR and the

Service have the authority (and indeed,

have had the authority since these

regulations were first adopted more than

45 years ago) to promulgate disciplinary

regulations on a nationwide basis

governing the privilege of appearing as

an attorney or representative before the

Board, the Immigration Courts, and the

Service.

The commenters also claim that this

regulation is unnecessary in light of the

51 state bar disciplinary agencies

(including the District of Columbia)

which regulate attorney conduct. The

American Bar Association (ABA)

suggested that EOIR and the Service

establish a system by which complaints

about attorneys alleged to have engaged

in misconduct be referred to state

disciplinary authorities, and by which

such disciplinary authorities then

would notify the agencies about

sanctioned lawyers. Since the ABA

submitted almost identical comments

regarding the EOIR/Service rule and the

Social Security Administration’s (SSA’s)

recently published rule on its

disciplinary system (see 63 FR 41404

(1998)), it appears that the organization

is expressing its general objection to

federal oversight of the professional

conduct of those who appear before

federal agencies.

In response to such comments, it

should be noted that immigration

hearings are held in approximately 50

Immigration Courts located in 23

different states and territories.

Moreover, attorneys often represent

aliens in jurisdictions other than those

in which they are licensed to practice

law. It is imperative that EOIR and the

Service administer a uniform

disciplinary system among the

respective Immigration Courts. For the

reasons explained in SSA’s

supplementary information to their

disciplinary rule, EOIR and the Service

should not be expected or required to

apply numerous local rules, or local

interpretations of the rules, to problems

that require national uniformity.

Applying local rules or local

interpretations in lieu of a national

standard would leave immigration

attorneys in one state subject to

discipline, while possibly exempting

immigration attorneys in another state.

EOIR and the Service do not believe that

it would benefit the Board, the

Immigration Courts, the Service, the

public, or attorneys to promote

inconsistency in regulating the conduct

of practitioners, who all practice before

the same forum.

Similar to the SSA program, practice

before EOIR and the Service is not

limited to attorneys, but includes nonattorneys who may not be subject to

state bar rules. EOIR and the Service

believe that all practitioners, attorneys

and non-attorneys alike, must be held to

uniform standards of professional

conduct in immigration proceedings.

Without this regulation, non-attorneys

may not be accountable to any

disciplinary authority.

EOIR and the Service anticipate

working closely with the various state

bars when investigating disciplinary

complaints. Referrals to state bars may

be appropriate when a complaint does

not allege a violation of the federal

regulations but may allege a violation of

state bar rules or regulations.

Cooperation between the federal

government and the 51 state bar

disciplinary authorities will optimize

resources and minimize duplication of

investigations. In general, state bars

have not been resistant to the Federal

government’s efforts to assist in

protecting the public by scrutinizing the

professional conduct of attorneys.

Moreover, immigration law is a very

complex area and this program may

assist state bars with investigating

allegations of misconduct against

immigration attorneys.

After publication of the proposed

rule, the vast majority of comments

were from attorneys who opposed the

idea of any Federal government

regulations of professional conduct.

However, as we have tried to emphasize

in this final rule, the Department’s

imperatives, including preserving the

integrity of the Board, the Immigration

Courts, and the Service, ensuring the

important and proper discharge of

statutory duties under the immigration

laws of the United States, and

safeguarding a vulnerable client

population, support continuing and

improving the reasonable and fair

regulation of such conduct.

One comment in particular

exemplified the peril of susceptible

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39525

clients, and was submitted by

immigrant twin brothers who are law

students. After fleeing the former

Yugoslavia, they arrived in the United

States with the hope of starting a new

life. They feared for their lives in their

country and applied for political asylum

so they would not have to return to their

country to face persecution and possibly

death. They retained an immigration

attorney to help them file the necessary

applications. After appearing before an

Immigration Judge, the brothers were

given a deadline to file their asylum

applications with the court, and a

hearing date was set. The attorney

assured the brothers that the

applications had been filed before the

deadline and that they did not need to

show up for any further hearings before

the Immigration Judge.

During the ensuing months, the

attorney continued to pressure the

brothers for additional legal fees, telling

them he needed to file more paperwork.

He told them to expect to receive their

permanent resident cards in the mail.

After numerous attempts to contact the

attorney over the next several years, the

brothers finally went to the Immigration

Court to find out the status of their case.

Much to their surprise, they learned that

their case had been dismissed after the

Immigration Judge and the Board

considered their requests for asylum to

be abandoned when no applications had

been submitted by the deadline. The

brothers then contacted their attorney

who told them that he had never

received anything from the Immigration

Court or the Service.

Eventually, they hired a new attorney

who helped them correct the mistakes of

the former attorney by filing a motion to

reopen based on ineffective assistance of

counsel. The brothers wrote: ‘‘The

immigration problem which faces this

great nation of ours is caused by many

of the immigration attorneys who

misrepresent their clients who often do

not speak (the) English language and do

not understand immigration law. * * *

The proposed rule is a rule which needs

to be used in practice. It needs to be

enacted in order to deter the misconduct

of attorneys who practice immigration

law. These attorneys like our former

attorney are taking advantage of the

most vulnerable group of people in our

society. Your office would serve a great

deal in this process by properly

investigating, and determining which

complaints have merit. * * * This rule

makes good on a pledge by the Attorney

General to deter the bad conduct of

immigration attorneys. Hopefully, this

letter will inform you that (the) rule is

needed and wanted by not only

immigrants like us but also future legal

professionals.’’

Regulatory Flexibility Act

In accordance with 5 U.S.C. 605(b),

the Attorney General certifies that this

rule affects only those practitioners who

practice immigration law before EOIR

and the Service. Approximately 5000

immigration and 400 accredited

representatives will be subject to this

rule. This rule will not have a

significant adverse economic impact on

a substantial number of small entities

because the rule is similar in substance

to the existing regulatory process and

will affect only those practitioners who

have committed serious crimes or who

have lost their license to practice law or

otherwise engaged in professional

misconduct. Therefore, this rule does

not have a significant economic impact

on a substantial number of small

entities.

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.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is not a major rule as

defined by section 804 of the Small

Business Regulatory Enforcement Act of

1996. 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 foreignbased companies in domestic and

export markets.

Executive Order 12866

This regulation has been drafted and

reviewed in accordance with Executive

Order 12866, ‘‘Regulatory Planning and

Review’’, section 1(b), Principles of

Regulation. The Department of Justice

has determined that this rule is not a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f), and

accordingly this rule has not been

reviewed by the Office of Management

and Budget.

Executive Order 12612

This regulation 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 Executive Order 12612,

it is determined that this rule does not

have sufficient federalism implications

to warrant the preparation of a

Federalism Assessment.

Executive Order 12988—Civil Justice

Reform

This regulation meets the applicable

standards set forth in sections 3(a) and

3(b)(2) of Executive Order 12988.

Plain Language Instructions

We try to write clearly. If you can

suggest how to improve the clarity of

these regulations, call or write Charles

Adkins-Blanch, Acting General Counsel,

Executive Office for Immigration

Review, 5107 Leesburg Pike, Suite 2400,

Falls Church, Virginia, 22041, telephone

(703) 305–0470.

List of Subpart

8 CFR Part 3

Administrtive practice and procedure,

Immigration, Legal services,

Organizataion and functions

(Government agencies), Reporting and

recordkeeping requirements.

8 CFR Part 292

Administrative practice and

procedures, Immigration, Reporting and

recordkeeping requirements.

For the reasons set forth in the

preamble, parts 3 and 292 of title 8 of

the Code of Federal Regulations are

amended as follows:

PART 3—EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW

1. The authority citation for Part 3

continues to read as follows:

Authority: 5 U.S.C. 301; 8 U.S.C. 1103;

1252 note, 1252b, 1324b, 1362; 28 U.S.C. 509,

510, 1746; sec. 2, Reorg. Plan No. 2 of 1950,

3 CFR, 1949–1953 Comp., p. 1002; section

203 of Pub L. 105–100.

2. In section 3.1, add paragraph

(b)(13) and revise paragraph (d)(3) to

read as follows:

§ 3.1 [Amended]

* * * * *

(b) * * *

(13) Decisions of adjudicating officials

in practitioner disciplinary proceedings

as provided in subpart G of this part.

* * * * *

(d) * * *

(3) Rules of practice. The Board shall

have authority, with the approval of the

39526 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

Director, EOIR, to prescribe rules

governing proceedings before it. It shall

also determine whether any

organization and/or individual desiring

to represent aliens in immigration

proceedings meets the requirements as

set forth in § 292.2 of this chapter.

3–4. Section 3.1(d)(1–a)(ii) is

amended by revising the reference to

‘‘§ 292.3(a)(15) of this chapter’’ in the

first sentence to read ‘‘§ 3.102(j).’’

§ 3.12 [Amended]

5. Section 3.12 is amended by revising

the reference to ‘‘§ 292.3 of this chapter’’

in the second sentence to read ‘‘this part

3.’’

Subpart F—[Reserved]

6. Subpart F is added and reserved.

7. Subpart G is added to Part 3 to read

as follows:

Subpart G—Professional Conduct for

Practitioners—Rules and Procedures

Sec.

3.101 General provisions.

3.102 Grounds.

3.103 Immediate suspension and summary

disciplinary proceedings; duty of

practitioner to notify EOIR of correction

or discipline.

3.104 Filing of complaints; preliminary

inquiries; resolutions; referral of

complaints.

3.105 Notice of Intent to Discipline.

3.106 Hearing and disposition.

3.107 Reinstatement after expulsion or

suspension.

3.108 Confidentiality.

3.109 Discipline of government attorneys.

Subpart G—Professional Conduct for

Practitioners—Rules and Procedures

§ 3.101 General provisions.

(a) Authority to sanction. An

adjudicating official or the Board of

Immigration Appeals (the 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 the Board

and the Immigration Courts when such

person has engaged in criminal,

unethical, or unprofessional conduct, or

in frivolous behavior, as set forth in

§ 3.102. In accordance with the

disciplinary proceedings set forth in this

subpart and outlined below, an

adjudicating official or the Board may

impose any of the following disciplinary

sanctions:

(1) Expulsion, which is permanent,

from practice before the Board and the

Immigration Courts or the Immigration

and Naturalization Service (the Service),

or before all three authorities;

(2) Suspension, including immediate

suspension, from practice before the

Board and the Immigration Courts or the

Service, or before all three authorities;

(3) Public or private censure; or

(4) Such other disciplinary sanctions

as the adjudicating official or the Board

deems appropriate.

(b) Persons subject to sanctions.

Persons subject to sanctions include any

practitioner. A practitioner is any

attorney as defined in § 1.1(f) of this

chapter who does not represent the

federal government, or any

representative as defined in § 1.1(j) of

this chapter. Attorneys employed by the

Department of Justice shall be subject to

discipline pursuant to § 3.109. Nothing

in this regulation shall be construed as

authorizing persons who do not meet

the definition of practitioner to

represent individuals before the Board

and the Immigration Courts or the

Service.

§ 3.102 Grounds.

It is deemed to be in the public

interest for an adjudicating official or

the Board to impose disciplinary

sanctions against any practitioner who

falls within one or more of the

categories enumerated in this section,

but 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. A practitioner who

falls within one of the following

categories shall be subject to

disciplinary sanctions in the public

interest if he or she:

(a) Charges or receives, either directly

or indirectly:

(1) In the case of an attorney, any fee

or compensation for specific services

rendered for any person that shall be

deemed to be grossly excessive. The

factors to be considered in determining

whether a fee or compensation is grossly

excessive include the following: The

time and labor required, the novelty and

difficulty of the questions involved, and

the skill requisite to perform the legal

service properly; the likelihood, if

apparent to the client, that the

acceptance of the particular

employment will preclude other

employment by the attorney; the fee

customarily charged in the locality for

similar legal services; the amount

involved and the results obtained; the

time limitations imposed by the client

or by the circumstances; the nature and

length of the professional relationship

with the client; and the experience,

reputation, and ability of the attorney or

attorneys performing the services,

(2) In the case of an accredited

representative as defined in § 292.1(a)(4)

of this chapter, any fee or compensation

for specific services rendered for any

person, except that an accredited

representative may be regularly

compensated by the organization of

which he or she is an accredited

representative, or

(3) In the case of a law student or law

graduate as defined in § 292.1(a)(2) of

this chapter, any fee or compensation

for specific services rendered for any

person, except that a law student or law

graduate may be regularly compensated

by the organization or firm with which

he or she is associated as long as he or

she is appearing without direct or

indirect remuneration from the client he

or she represents;

(b) Bribes, attempts to bribe, coerces,

or attempts to coerce, by any means

whatsoever, any person (including a

party to a case or an officer or employee

of the Department of Justice) to commit

any act or to refrain from performing

any act in connection with any case;

(c) Knowingly or with reckless

disregard makes a false statement of

material fact or law, or willfully

misleads, misinforms, threatens, or

deceives any person (including a party

to a case or an officer or employee of the

Department of Justice), concerning any

material and relevant matter relating to

a case, including knowingly or with

reckless disregard offering false

evidence. If a practitioner has offered

material evidence and comes to know of

its falsity, the practitioner shall take

appropriate remedial measures;

(d) Solicits professional employment,

through in-person or live telephone

contact or through the use of runners,

from a prospective client with whom

the practitioner has no family or prior

professional relationship, when a

significant motive for the practitioner’s

doing so is the practitioner’s pecuniary

gain. If the practitioner has no family or

prior professional relationship with the

prospective client known to be in need

of legal services in a particular matter,

the practitioner must include the words

‘‘Advertising Material’’ on the outside of

the envelope of any written

communication and at the beginning

and ending of any recorded

communication. Such advertising

material or similar solicitation

documents may not be distributed by

any person in or around the premises of

any building in which an Immigration

Court is located;

(e) Is subject to a final order of

disbarment or suspension, or has

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39527

resigned with an admission of

misconduct.

(1) In the jurisdiction of any state,

possession, territory, commonwealth, or

the District of Columbia, or in any

Federal court in which the practitioner

is admitted to practice, or

(2) Before any executive department,

board, commission, or other

governmental unit;

(f) Knowingly or with reckless

disregard makes a false or misleading

communication about his or her

qualifications or services. A

communication is false or misleading if

it:

(1) Contains a material

misrepresentation of fact or law, or

omits a fact necessary to make the

statement considered as a whole not

materially misleading, or,

(2) Contains an assertion about the

practitioner or his or her qualifications

or services that cannot be substantiated.

A practitioner shall not state or imply

that he or she has been recognized or

certified as a specialist in immigration

and/or nationality law unless such

certification is granted by the

appropriate state regulatory authority or

by an organization that has been

approved by the appropriate state

regulatory authority to grant such

certification;

(g) Engages in contumelious or

otherwise obnoxious conduct, with

regard to a case in which he or she acts

in a representative capacity, which

would constitute contempt of court in a

judicial proceeding;

(h) Has been found guilty of, or

pleaded guilty or nolo contendere to, a

serious crime, in any court of the United

States, or of any state, possession,

territory, commonwealth, or the District

of Columbia. A serious crime includes

any felony and also includes any lesser

crime, a necessary element of which, as

determined by the statutory or common

law definition of such crime in the

jurisdiction where the judgment was

entered, involves interference with the

administration of justice, false swearing,

misrepresentation, fraud, willful failure

to file income tax returns, deceit,

dishonesty, bribery, extortion,

misappropriation, theft, or an attempt,

or a conspiracy or solicitation of

another, to commit a serious crime. A

plea or verdict of guilty or a conviction

after a plea of nolo contendere is

deemed to be a conviction within the

meaning of this section;

(i) Knowingly or with reckless

disregard falsely certifies a copy of a

document as being a true and complete

copy of an original;

(j) Engages in frivolous behavior in a

proceeding before an Immigration Court,

the Board, or any other administrative

appellate body under title II of the

Immigration and Nationality Act,

provided:

(1) A practitioner engages in frivolous

behavior when he or she knows or

reasonably should have known that his

or her actions lack an arguable basis in

law or in fact, or are taken for an

improper purpose, such as to harass or

to cause unnecessary delay. Actions

that, if taken improperly, may be subject

to disciplinary sanctions include, but

are not limited to, the making of an

argument on any factual or legal

question, the submission of an

application for discretionary relief, the

filing of a motion, or the filing of an

appeal. The signature of a practitioner

on any filing, application, motion,

appeal, brief, or other document

constitutes certification by the signer

that the signer has read the filing,

application, motion, appeal, brief, or

other document and that, to the best of

the signer’s knowledge, information,

and belief, formed after inquiry

reasonable under the circumstances, the

document is well-grounded in fact and

is warranted by existing law or by a

good faith argument for the extension,

modification, or reversal of existing law

or the establishment of new law, and is

not interposed for any improper

purpose.

(2) The imposition of disciplinary

sanctions for frivolous behavior under

this section in no way limits the

authority of the Board to dismiss an

appeal summarily pursuant to

§ 3.1(d)(1-a);

(k) Engages in conduct that

constitutes ineffective assistance of

counsel, as previously determined in a

finding by the Board or an Immigration

Judge in an immigration proceeding,

and a disciplinary complaint is filed

within one year of the finding;

(l) Repeatedly fails to appear for

scheduled hearings in a timely manner

without good cause; or

(m) Assists any person, other than a

practitioner as defined in § 3.101(b), in

the performance of activity that

constitutes the unauthorized practice of

law.

§ 3.103 Immediate suspension and

summary disciplinary proceedings; duty of

practitioner to notify EOIR of conviction or

discipline.

(a) Immediate suspension. (1)

Petition. The Office of the General

Counsel of EOIR shall file a petition

with the Board to suspend immediately

from practice before the Board and the

Immigration Courts any practitioner

who has been found guilty of, or

pleaded guilty or nolo contendere to, a

serious crime, as defined in § 3.102(h),

or any practitioner who has been

disbarred or suspended on an interim or

final basis by, or has resigned with an

admission of misconduct from, the

highest court of any state, possession,

territory, commonwealth, or the District

of Columbia, or any Federal court. A

copy of the petition shall be forwarded

to the Office of the General Counsel of

the Service, which may submit a written

request to the Board that entry of any

order immediately suspending a

practitioner before the Board or the

Immigration Courts also apply to the

practitioner’s authority to practice

before the Service. Proof of service on

the practitioner of the Service’s request

to broaden the scope of any immediate

suspension must be filed with the

Board.

(2) Immediate suspension. Upon the

filing of a petition for immediate

suspension by the Office of the General

Counsel of EOIR, together with a

certified copy of a court record finding

that a practitioner has been so found

guilty of a serious crime, or has been so

disciplined or has so resigned, the

Board shall forthwith enter an order

immediately suspending the

practitioner from practice before the

Board, the Immigration Courts, and/or

the Service, notwithstanding the

pendency of an appeal, if any, of the

underlying conviction or discipline,

pending final disposition of a summary

disciplinary proceeding as provided in

paragraph (b) of this section. Such

immediate suspension will continue

until imposition of a final

administrative decision. Upon good

cause shown, the Board may set aside

such order of immediate suspension

when it appears in the interest of justice

to do so. If a final administrative

decision includes the imposition of a

period of suspension, time spent by the

practitioner under immediate

suspension pursuant to this paragraph

may be credited toward the period of

suspension imposed under the final

administrative decision.

(b) Summary disciplinary

proceedings. The Office of the General

Counsel of EOIR shall promptly initiate

summary disciplinary proceedings

against any practitioner described in

paragraph (a) of this section. Summary

proceedings shall be initiated by the

issuance of a Notice of Intent to

Discipline, accompanied by a certified

copy of the order, judgment, and/or

record evidencing the underlying

criminal conviction, discipline, or

resignation. Summary proceedings shall

be conducted in accordance with the

provisions set forth in §§ 3.105 and

3.106. Any such summary proceeding

39528 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

shall not be concluded until all direct

appeals from an underlying criminal

conviction shall have been completed.

(1) In matters concerning criminal

convictions, a certified copy of the court

record, docket entry, or plea shall be

conclusive evidence of the commission

of the crime in any summary

disciplinary proceeding based thereon.

(2) In the case of a summary

proceeding based upon a final order of

disbarment or suspension, or a

resignation with an admission of

misconduct, (i.e., reciprocal discipline),

a certified copy of a judgment or order

of discipline shall establish a rebuttable

presumption of the professional

misconduct. Disciplinary sanctions

shall follow in such a proceeding unless

the attorney can rebut the presumption

by demonstrating by clear, unequivocal,

and convincing evidence that:

(i) The underlying disciplinary

proceeding was so lacking in notice or

opportunity to be heard as to constitute

a deprivation of due process;

(ii) There was such an infirmity of

proof establishing the attorney’s

professional misconduct as to give rise

to the clear conviction that the

adjudicating official could not,

consistent with his or her duty, accept

as final the conclusion on that subject;

or

(iii) The imposition of discipline by

the adjudicating official would result in

grave injustice.

(c) Duty of practitioner to notify EOIR

of conviction or discipline. Any

practitioner who has been found guilty

of, or pleaded guilty or nolo contendere

to, a serious crime, as defined in

§ 3.102(h), or who has been disbarred or

suspended by, or who has resigned with

an admission of misconduct from, the

highest court of any state, possession,

territory, commonwealth, or the District

of Columbia, or by any Federal court,

must notify the Office of the General

Counsel of EOIR of any such conviction

or disciplinary action within 30 days of

the issuance of the initial order, even if

an appeal of the conviction or discipline

is pending. Failure to do so may result

in immediate suspension as set forth in

paragraph (a) of this section and other

final discipline. This duty to notify

applies only to convictions for serious

crimes and to orders imposing

discipline for professional misconduct

entered on or after August 28, 2000.

§ 3.104 Filing of complaints; preliminary

inquiries; resolutions; referral of

complaints.

(a) Filing of complaints.—(1)

Practitioners authorized to practice

before the Board and the Immigration

Courts. Complaints of criminal,

unethical, or unprofessional conduct, or

of frivolous behavior by a practitioner

who is authorized to practice before the

Board and the Immigration Courts, shall

be filed with the Office of the General

Counsel of EOIR. Disciplinary

complaints must be submitted in

writing and must state in detail the

information that supports the basis for

the complaint, including, 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. Any

individual may file a complaint with the

Office of the General Counsel of EOIR

using the Form EOIR–44. The Office of

the General Counsel of EOIR shall notify

the Office of the General Counsel of the

Service of any disciplinary complaint

that pertains, in whole or in part, to a

matter involving the Service.

(2) Practitioners authorized to

practice before the Service. Complaints

of criminal, unethical, or unprofessional

conduct, or of frivolous behavior by a

practitioner who is authorized to

practice before the Service, shall be filed

with the Office of the General Counsel

of the Service pursuant to the

procedures set forth in § 292.3(d) of this

chapter.

(b) Preliminary inquiry. Upon receipt

of a disciplinary complaint or on its

own initiative, the Office of the General

Counsel of EOIR 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 proceedings

based thereon. If the Office of the

General Counsel of EOIR determines

that a complaint is without merit, no

further action will be taken. The Office

of the General Counsel of EOIR may, in

its discretion, close a preliminary

inquiry if the complainant fails to

comply with reasonable requests for

assistance, information, or

documentation. The complainant and

the practitioner shall be notified of any

such determination in writing.

(c) Resolutions reached prior to the

issuance of a Notice of Intent to

Discipline. The Office of the General

Counsel of EOIR, in its discretion, may

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.

(d) Referral of complaints of criminal

conduct. If the Office of the General

Counsel of EOIR receives credible

information or allegations that a

practitioner has engaged in criminal

conduct, the Office of the General

Counsel of EOIR shall refer the matter

to the Inspector General and, if

appropriate, to the Federal Bureau of

Investigation. In such cases, in making

the decision to pursue disciplinary

sanctions, the Office of the General

Counsel of EOIR shall coordinate in

advance with the appropriate

investigative and prosecutorial

authorities within the Department to

ensure that neither the disciplinary

process nor criminal prosecutions are

jeopardized.

§ 3.105 Notice of Intent to Discipline.

(a) Issuance of Notice to practitioner.

If, upon completion of the preliminary

inquiry, the Office of the General

Counsel of EOIR determines that

sufficient prima facie evidence exists to

warrant charging a practitioner with

professional misconduct as set forth in

§ 3.102, it will issue a Notice of Intent

to Discipline to the practitioner named

in the complaint. This notice will be

served upon the practitioner by personal

service as defined in § 103.5a of this

chapter. 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.

(b) Copy of Notice to the Service;

reciprocity of disciplinary sanctions. A

copy of the Notice of Intent to

Discipline shall be forwarded to the

Office of the General Counsel of the

Service. The Office of the General

Counsel of the Service 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 the Board or the

Immigration Courts also apply to the

practitioner’s authority to practice

before the Service. Proof of service on

the practitioner of any request to

broaden the scope of the proposed

discipline must be filed with the

adjudicating official.

(c) Answer.—(1) Filing. The

practitioner shall file a written answer

to the Notice of Intent to Discipline with

the Board within 30 days of the date of

service of the Notice of Intent to

Discipline unless, on motion to the

Board, an extension of time to answer is

granted for good cause. A motion for an

extension of time to answer must be

received by the Board no later than

three (3) working days before the time

to answer has expired. A copy of the

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39529

answer and any such motion shall be

served by the practitioner on the Office

of the General Counsel of EOIR (or the

Office of the General Counsel of the

Service with respect to a Notice of

Intent to Discipline issued by the

Service).

(2) Contents. The answer shall contain

a statement of facts which constitute the

grounds of defense and shall

specifically admit or deny each

allegation set forth in the Notice of

Intent to Discipline. Every allegation in

the Notice of Intent to Discipline which

is not denied in the answer shall be

deemed to be admitted and may be

considered as proved, and no further

evidence in respect of such allegation

need be adduced. The practitioner may

also state affirmatively special matters

of defense and may submit supporting

documents, including affidavits or

statements, along with the answer.

(3) Request for hearing. The

practitioner shall also state in the

answer whether he or she requests a

hearing on the matter. If no such request

is made, the opportunity for a hearing

will be deemed waived.

(d) Failure to file an answer. (1)

Failure to file an answer within the time

period prescribed in the Notice of Intent

to Discipline, except where the time to

answer is extended by the Board, shall

constitute an admission of the

allegations in the Notice of Intent to

Discipline and no further evidence with

respect to such allegations need be

adduced.

(2) Upon such a default by the

practitioner, the Office of the General

Counsel shall submit to the Board proof

of personal service of the Notice of

Intent to Discipline. The practitioner

shall be precluded thereafter from

requesting a hearing on the matter. The

Board shall issue a final order adopting

the recommended disciplinary

sanctions in the Notice of Intent to

Discipline unless to do so would foster

a tendency toward inconsistent

dispositions for comparable conduct, or

would otherwise be unwarranted or not

in the interest of justice. Any final order

imposing discipline shall not become

effective sooner than 15 days from the

date of the order to provide the

practitioner opportunity to comply with

the terms of such order, including, but

not limited to, withdrawing from

pending immigration matters and

notifying immigration clients of the

imposition of any sanction. A

practitioner may file a motion to set

aside a final order of discipline issued

pursuant to this paragraph, with service

of such motion on the Office of the

General Counsel of EOIR, provided:

(i) Such a motion is filed within 15

days of the date of service of the final

order; and

(ii) His or her failure to file an answer

was due to exceptional circumstances

(such as serious illness of the

practitioner or death of an immediate

relative of the practitioner, but not

including less compelling

circumstances) beyond the control of

the practitioner.

§ 3.106 Hearing and disposition.

(a) Hearing.—(1) Procedure. (i) The

Chief Immigration Judge shall, upon the

filing of an answer, appoint an

Immigration Judge as an adjudicating

official. At the request of the Chief

Immigration Judge or in the interest of

efficiency, the Director of EOIR may

appoint an Administrative Law Judge as

an adjudicating official. An Immigration

Judge or Administrative Law Judge shall

not serve as the adjudicating official in

any case in which he or she is also the

complainant. An Immigration Judge

shall not serve as the adjudicating

official in any case involving a

practitioner who regularly appears

before him or her.

(ii) Upon the practitioner’s request for

a hearing, the adjudicating official shall

designate the time and place of the

hearing with due regard to the location

of the practitioner’s practice or

residence, the convenience of witnesses,

and any other relevant factors. Such

notice shall be served upon the

practitioner by personal service as

defined in § 103.5a of this chapter. The

practitioner shall be afforded adequate

time to prepare his or her case in

advance of the hearing. Pre-hearing

conferences may be scheduled at the

discretion of the adjudicating official in

order to narrow issues, to obtain

stipulations between the parties, to

exchange information voluntarily, and

otherwise to simplify and organize the

proceeding. Settlement agreements

reached after the issuance of a Notice of

Intent to Discipline are subject to final

approval by the adjudicating official or

if the practitioner has not filed an

answer, subject to final approval by the

Board.

(iii) The practitioner may be

represented at the hearing by counsel at

no expense to the government. Counsel

for the practitioner shall file a Notice of

Entry of Appearance on Form EOIR–28

in accordance with the procedures set

forth in this Part 3. At the hearing, the

practitioner shall have a reasonable

opportunity to examine and object to

evidence presented by the government,

to present evidence on his or her own

behalf, and to cross-examine witnesses

presented by the government.

(iv) In rendering a decision, the

adjudicating official shall consider the

following: the complaint, the

preliminary inquiry report, the Notice of

Intent to Discipline, the answer and any

supporting documents, and any other

evidence presented at the hearing (or, if

the practitioner files an answer but does

not request a hearing, any pleading,

brief, or other materials submitted by

counsel for the government). Counsel

for the government shall bear the

burden of proving the grounds for

disciplinary sanctions enumerated in

the Notice of Intent to Discipline by

clear, unequivocal, and convincing

evidence.

(v) The record of the hearing,

regardless of whether the hearing is held

before an Immigration Judge or an

Administrative Law Judge, shall

conform to the requirements of 8 CFR

part 3, subpart C and 8 CFR 240.9.

Disciplinary hearings shall be

conducted in the same manner as

Immigration Court proceedings as is

appropriate, and shall be open to the

public, except that:

(A) Depending upon physical

facilities, the adjudicating official may

place reasonable limitations upon the

number of individuals in attendance at

any one time, with priority being given

to the press over the general public, and

(B) For the purposes of protecting

witnesses, parties, or the public interest,

the adjudicating official may limit

attendance or hold a closed hearing.

(2) Failure to appear at the hearing. If

the practitioner fails to appear at the

hearing, the adjudicating official shall

then proceed and decide the case in the

absence of the practitioner, in

accordance with paragraph (b) of this

section, based upon the available

record, including any additional

evidence or arguments presented by

EOIR or the Service at the hearing. In

such a proceeding, the Office of the

General Counsel of EOIR or the Office

of the General Counsel of the Service

shall submit to the adjudicating official

proof of personal service of the Notice

of Intent to Discipline as well as the

Notice of the Hearing. The practitioner

shall be precluded thereafter from

participating further in the proceedings.

Any final order imposing discipline

entered in absentia shall be a final

order, but shall not become effective

sooner than 15 days from the date of the

order to provide the practitioner

opportunity to comply with the terms of

such order, including, but not limited

to, withdrawing from pending

immigration matters and notifying

immigration clients of the imposition of

any sanction. A final order of discipline

issued pursuant to this paragraph shall

39530 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

not be subject to further review, except

that the practitioner may file a motion

to set aside the order, with service of

such motion on the Office of the General

Counsel of EOIR (or the Office of the

General Counsel of the Service),

provided:

(i) Such a motion is filed within 15

days of the date of issuance of the final

order; and

(ii) His or her failure to appear at the

hearing was due to exceptional

circumstances (such as serious illness of

the practitioner or death of an

immediate relative of the practitioner,

but not including less compelling

circumstances) beyond the control of

the practitioner.

(b) Decision. The adjudicating official

shall consider the entire record,

including any testimony and evidence

presented at the hearing, and, as soon as

practicable after the hearing, render a

decision. If the adjudicating official

finds that one or more of the grounds for

disciplinary sanctions enumerated in

the Notice of Intent to Discipline have

been established by clear, unequivocal,

and convincing evidence, he or she

shall rule that the disciplinary sanctions

set forth in the Notice of Intent to

Discipline be adopted, modified, or

otherwise amended. If the adjudicating

official determines that the practitioner

should be suspended, the time period

for such suspension shall be specified.

Any grounds for disciplinary sanctions

enumerated in the Notice of Intent to

Discipline that have not been

established by clear, unequivocal, and

convincing evidence shall be dismissed.

Except as provided in paragraph (a)(2)

of this section, the adjudicating official’s

decision becomes final only upon

waiver of appeal or expiration of the

time for appeal to the Board, whichever

comes first, nor does it take effect

during the pendency of an appeal to the

Board as provided in § 3.6.

(c) Appeal. Upon the issuance of a

decision by the adjudicating official,

either party or both parties may appeal

to the Board to conduct a de novo

review of the record. Parties must

comply with all pertinent provisions for

appeals to the Board, including

provisions relating to forms and fees, as

set forth in this Part 3, and must use the

Form EOIR–45. The decision of the

Board is a final administrative order as

provided in § 3.1(d)(2), and shall be

served upon the practitioner by personal

service as defined in § 103.5a of this

chapter. Any final order imposing

discipline shall not become effective

sooner than 15 days from the date of the

order to provide the practitioner

opportunity to comply with the terms of

such order, including, but not limited

to, withdrawing from any pending

immigration matters and notifying

immigration clients of the imposition of

any sanction. A copy of the final

administrative order of the Board shall

be served upon the Office of the General

Counsel of EOIR and the Office of the

General Counsel of the Service. If

disciplinary sanctions are imposed

against a practitioner (other than a

private censure), the Board may require

that notice of such sanctions be posted

at the Board, the Immigration Courts, or

the Service for the period of time during

which the sanctions are in effect, or for

any other period of time as determined

by the Board.

(d) Referral. In addition to, or in lieu

of, initiating disciplinary proceedings

against a practitioner, the Office of the

General Counsel of EOIR 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) shall be reported to any such

disciplinary or regulatory authority in

every jurisdiction where the disciplined

practitioner is admitted or otherwise

authorized to practice. In addition, the

Office of the General Counsel of EOIR

shall transmit notice of all public

discipline imposed under this rule to

the National Lawyer Regulatory Data

Bank maintained by the American Bar

Association.

§ 3.107 Reinstatement after expulsion or

suspension.

(a) Expiration of suspension. Upon

notice to the Board, a practitioner who

has been suspended will be reinstated to

practice before the Board and the

Immigration Courts or the Service, or

before all three authorities, once the

period of suspension has expired,

provided that he or she meets the

definition of attorney or representative

as set forth in § 1.1(f) and (j),

respectively, of this chapter. If a

practitioner cannot meet the definition

of attorney or representative, the Board

shall decline to reinstate the

practitioner.

(b) Petition for reinstatement. A

practitioner who has been expelled or

who has been suspended for one year or

more may file a petition for

reinstatement directly with the Board

after one-half of the suspension period

has expired or one year has passed,

whichever is greater, provided that he or

she meets the definition of attorney or

representative as set forth in § 1.1(f) and

(j), respectively, of this chapter. A copy

of such petition shall be served on the

Office of the General Counsel of EOIR.

In matters in which the practitioner was

ordered expelled or suspended from

practice before the Service, a copy of

such petition shall be served on the

Office of the General Counsel of the

Service.

(1) The practitioner shall have the

burden of demonstrating by clear,

unequivocal, and convincing evidence

that he or she possesses the moral and

professional qualifications required to

appear before the Board and the

Immigration Courts or the Service, or

before all three authorities, and that his

or her reinstatement will not be

detrimental to the administration of

justice. The Office of the General

Counsel of EOIR, and in matters in

which the practitioner was ordered

expelled or suspended from practice

before the Service, the Office of the

General Counsel of the Service, may

reply within 30 days of service of the

petition in the form of a written

response to the Board, which may

include documentation of any

complaints filed against the expelled or

suspended practitioner subsequent to

his or her expulsion or suspension.

(2) If a practitioner cannot meet the

definition of attorney or representative

as set forth in § 1.1(f) and (j),

respectively, of this chapter, the Board

shall deny the petition for reinstatement

without further consideration. If the

petition for reinstatement is found to be

otherwise inappropriate or

unwarranted, the petition shall be

denied. Any subsequent petitions for

reinstatement may not be filed before

the end of one year from the date of the

Board’s previous denial of

reinstatement. If the petition for

reinstatement is determined to be

timely, the practitioner meets the

definition of attorney or representative,

and the petitioner has otherwise set

forth by the requisite standard of proof

that he or she possesses the

qualifications set forth herein, and that

reinstatement will not be detrimental to

the administration of justice, the Board

shall grant the petition and reinstate the

practitioner. The Board, in its

discretion, may hold a hearing to

determine if the practitioner meets all of

the requirements for reinstatement.

§ 3.108 Confidentiality.

(a) Complaints and preliminary

inquiries. Except as otherwise provided

by law or 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 Office of the General

Counsel of EOIR may decline to permit

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39531

a waiver of confidentiality if it is

determined that an ongoing preliminary

inquiry may be substantially prejudiced

by public disclosure before the filing of

a Notice of Intent to Discipline.

(1) Disclosure of information for the

purpose of protecting the public. The

Office of the General Counsel of EOIR

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:

(i) 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 Office of the General

Counsel of EOIR may define the scope

of information disseminated and may

limit the disclosure of information to

specified individuals or entities;

(ii) A practitioner has committed

criminal acts or is under investigation

by law enforcement authorities;

(iii) 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 authorities;

(iv) A practitioner is the subject of

multiple disciplinary complaints and

the Office of the General Counsel of

EOIR has determined not to pursue all

of the complaints. The Office of the

General Counsel of EOIR 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.

(2) Disclosure of information for the

purpose of conducting a preliminary

inquiry. The Office of the General

Counsel of EOIR, in the exercise of

discretion, may disclose documents and

information concerning complaints and

preliminary inquiries to the following

individuals or entities:

(i) To witnesses or potential witnesses

in conjunction with a complaint or

preliminary inquiry;

(ii) To other governmental agencies

responsible for the enforcement of civil

or criminal laws;

(iii) To agencies and other

jurisdictions responsible for

disciplinary or regulatory investigations

and proceedings;

(iv) To the complainant or a lawful

designee;

(v) To the practitioner who is the

subject of the complaint or preliminary

inquiry or the practitioner’s counsel of

record.

(b) 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.

(c) 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

§ 3.106(a)(1)(v).

§ 3.109 Discipline of government

attorneys.

Complaints regarding the conduct or

behavior of Department attorneys,

Immigration Judges, or Board Members

shall be directed to the Office of

Professional Responsibility, United

States Department of Justice. If

disciplinary action is warranted, it shall

be administered pursuant to the

Department’s attorney discipline

procedures.

PART 292—REPRESENTATION AND

APPEARANCES

8. The authority citation for Part 292

continues to read as follows:

Authority: 8 U.S.C. 1103, 1252b, 1362.

9. Section 292.3 is revised to read as

follows:

§ 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 (the

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 the Service when such

person has engaged in criminal,

unethical, or unprofessional conduct, or

in frivolous behavior, as set forth in

§ 3.102 of this chapter. In accordance

with the disciplinary proceedings set

forth in part 3 of this chapter, 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 the Service, or

before all three authorities;

(ii) Suspension, including immediate

suspension, from practice before the

Board and the Immigration Courts or the

Service, 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 § 1.1(f) of this

chapter who does not represent the

federal government, or any

representative as defined in § 1.1(j) of

this chapter. Attorneys employed by the

Department of Justice shall be subject to

discipline pursuant to paragraph (i) of

this section.

(b) Grounds of discipline as set forth

in § 3.102 of this chapter. 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 § 3.102 of this

chapter, with the exception of

paragraphs (k) and (l) of that section, but

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 the Service of

conviction or discipline. (1) Petition.

The Office of the General Counsel of the

Service shall petition the Board to

suspend immediately from practice

before the Service any practitioner who

has been found guilty of, or pleaded

guilty or nolo contendere to, a serious

crime, as defined in § 3.102(h) of this

chapter, or who has been disbarred or

suspended on an interim or final basis

by, or has resigned with an admission

of misconduct from, the highest court of

any state, possession, territory,

commonwealth, or the District of

Columbia, or any Federal court. A copy

39532 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

of the petition shall be forwarded to the

Office of the General Counsel of EOIR,

which may submit a written request to

the Board that entry of any order

immediately suspending a practitioner

before the Service also apply to the

practitioner’s authority to practice

before the Board or 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.

(2) Immediate suspension. Upon the

filing of a petition for immediate

suspension by the Office of the General

Counsel of the Service, together with a

certified copy of a court record finding

that a practitioner has been so found

guilty of a serious crime, or has been so

disciplined or has so resigned, the

Board shall forthwith enter an order

immediately suspending the

practitioner from practice before the

Service and/or the Board and

Immigration Courts, notwithstanding

the pendency of an appeal, if any, of the

underlying conviction or discipline,

pending final disposition of a summary

proceeding, as provided in paragraph

(c)(3) of this section. Such immediate

suspension will continue until

imposition of a final administrative

decision. Upon good cause shown, the

Board may set aside such order of

immediate suspension when it appears

in the interest of justice to do so. If a

final administrative decision includes

the imposition of a period of

suspension, time spent by the

practitioner under immediate

suspension pursuant to this paragraph

may be credited toward the period of

suspension imposed under the final

administrative decision.

(3) Summary disciplinary

proceedings. The Office of the General

Counsel of the Service shall promptly

initiate summary disciplinary

proceedings against any practitioner

described in paragraph (c)(1) of this

section. Summary proceedings shall be

initiated by the issuance of a Notice of

Intent to Discipline, accompanied by a

certified copy of the order, judgment

and/or record evidencing the underlying

criminal conviction or discipline.

Summary proceedings shall be

conducted in accordance with the

provisions set forth in §§ 3.105 and

3.106 of this chapter. Any such

proceeding shall not be concluded until

all direct appeals from an underlying

criminal conviction have been

completed.

(i) In matters concerning criminal

convictions, a certified copy of the court

record, docket entry, or plea shall be

conclusive evidence of the commission

of that crime in any summary

disciplinary hearing based thereon.

(ii) In the case of a summary

proceeding based upon a final order of

disbarment or suspension, or a

resignation with an admission of

misconduct, (i.e., reciprocal discipline),

a certified copy of a judgment or order

of discipline shall establish a rebuttable

presumption of the professional

misconduct. Disciplinary sanctions

shall follow in such a proceeding unless

the attorney can rebut the presumption

by demonstrating by clear, unequivocal,

and convincing evidence that:

(A) The underlying disciplinary

proceeding was so lacking in notice or

opportunity to be heard as to constitute

a deprivation of due process;

(B) There was such an infirmity of

proof establishing the practitioner’s

professional misconduct as to give rise

to the clear conviction that the

adjudicating official could not,

consistent with his or her duty, accept

as final the conclusion on that subject;

or

(C) The imposition of discipline by

the adjudicating official would result in

grave injustice.

(4) Duty of practitioner to notify the

Service of conviction or discipline. Any

practitioner who has been found guilty

of, or pleaded guilty or nolo contendere

to, a serious crime, as defined in

§ 3.102(h) of this chapter, or who has

been disbarred or suspended by, or who

has resigned with an admission of

misconduct from, the highest court of

any state, possession, territory,

commonwealth, or the District of

Columbia, or by any Federal court, must

notify the Office of the General Counsel

of the Service of any such conviction or

disciplinary action within 30 days of the

issuance of the initial order, even if an

appeal of the conviction or discipline is

pending. Failure to do so may result in

immediate suspension as set forth in

paragraph (c)(1) of this section. This

duty to notify applies only to

convictions for serious crimes or to

orders imposing discipline for

professional misconduct entered on or

after July 27, 2000.

(d) Filing of complaints; preliminary

inquiries; resolutions; referral of

complaints.—(1) Filing of complaints.—

(i) Misconduct occurring before Service.

Complaints of criminal, unethical, or

unprofessional conduct, or of frivolous

behavior before the Service by a

practitioner shall be filed with the

Office of the General Counsel of the

Service. Disciplinary complaints must

be submitted in writing and must state

in detail the information that supports

the basis for the complaint, including,

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. Any individual may file a

complaint with the Office of the General

Counsel of the Service. The Office of the

General Counsel of the Service shall

notify the Office of the General Counsel

of EOIR of any disciplinary complaint

that pertains, in whole or in part, to a

matter before the Board or the

Immigration Courts.

(ii) Misconduct occurring before the

Board and the Immigration Courts.

Complaints of criminal, unethical, or

unprofessional conduct, or of frivolous

behavior before the Board and the

Immigration Courts by a practitioner

shall be filed with the Office of the

General Counsel of EOIR pursuant to the

procedures set forth in § 3.104(a) of this

chapter.

(2) Preliminary inquiry. Upon receipt

of a disciplinary complaint or on its

own initiative, the Office of the General

Counsel of the Service 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 Office of the

General Counsel of the Service

determines that a complaint is without

merit, no further action will be taken.

The Office of the General Counsel of the

Service may, in its discretion, close a

preliminary inquiry if the complainant

fails to comply with reasonable requests

for assistance, information, or

documentation. The complainant and

the practitioner shall be notified of any

such determination in writing.

(3) Resolutions reached prior to the

issuance of a Notice of Intent to

Discipline. The Office of the General

Counsel of the Service, in its discretion,

may 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.

(4) Referral of complaints of criminal

conduct. If the Office of the General

Counsel of the Service receives credible

information or allegations that a

practitioner has engaged in criminal

conduct, the Office of the General

Counsel of the Service shall refer the

matter to the Inspector General and, if

appropriate, to the Federal Bureau of

Investigation. In such cases, in making

the decision to pursue disciplinary

sanctions, the Office of the General

Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations 39533

Counsel of the Service shall coordinate

in advance with the appropriate

investigative and prosecutorial

authorities within the Department to

ensure that neither the disciplinary

process nor criminal prosecutions are

jeopardized.

(e) Notice of Intent to Discipline.—(1)

Issuance of Notice to practitioner. If,

upon completion of the preliminary

inquiry, the Office of the General

Counsel of the Service determines that

sufficient prima facie evidence exists to

warrant charging a practitioner with

professional misconduct as set forth in

§ 3.102 of this chapter, it will issue a

Notice of Intent to Discipline to the

practitioner named in the complaint.

This notice will be served upon the

practitioner by personal service as

defined in § 103.5a of this chapter. 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.

(2) Copy of Notice to EOIR; reciprocity

of disciplinary sanctions. A copy of the

Notice of Intent to Discipline shall be

forwarded to the Office of the General

Counsel of EOIR. The Office of the

General Counsel of EOIR 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 the Service 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 adjudicating

official.

(3) Answer.—(i) Filing. The

practitioner shall file a written answer

to the Notice of Intent to Discipline with

the Board as provided in § 3.105(c) of

this chapter.

(ii) Failure to file an answer. Failure

to file an answer within the time period

prescribed in the Notice of Intent to

Discipline, except where the time to

answer is extended by the Board, shall

constitute an admission of the

allegations in the Notice of Intent to

Discipline and no further evidence with

respect to such allegations need be

adduced. Upon such a default by the

practitioner, the Office of the General

Counsel of the Service shall submit to

the Board proof of personal service of

the Notice of Intent to Discipline. The

practitioner shall be precluded

thereafter from requesting a hearing on

the matter. The Board shall adopt the

recommended disciplinary sanctions in

the Notice of Intent to Discipline and

issue a final order as provided in

§ 3.105(d) of this chapter. A practitioner

may file a motion to set aside a final

order of discipline issued pursuant to

this paragraph, with service of such

motion on the Office of the General

Counsel of the Service, provided:

(A) Such a motion is filed within 15

days of service of the final order; and

(B) His or her failure to file an answer

was due to exceptional circumstances

(such as serious illness of the

practitioner or death of an immediate

relative of the practitioner, but not

including less compelling

circumstances) beyond the control of

the practitioner.

(f) Hearing and disposition; appeal;

reinstatement proceedings. Upon the

filing of an answer, the matter shall be

heard and decided according to the

procedures set forth in § 3.106(a), (b),

and (c) of this chapter. The Office of the

General Counsel of the Service shall

represent the government.

Reinstatement proceedings shall be

conducted according to the procedures

set forth in § 3.107 of this chapter.

(g) Referral. In addition to, or in lieu

of, initiating disciplinary proceedings

against a practitioner, the Office of the

General Counsel of the Service 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) shall be reported to any such

disciplinary or regulatory authority in

every jurisdiction where the disciplined

practitioner is admitted or otherwise

authorized to practice. In addition, the

Office of the General Counsel of the

Service shall transmit notice of all

public discipline imposed under this

rule to the National Lawyer Regulatory

Data Bank maintained by the American

Bar Association.

(h) Confidentiality.—(1) Complaints

and preliminary inquiries. Except as

otherwise provided by law or

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

Office of the General Counsel of the

Service 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

Office of the General Counsel of the

Service 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 Office of the General

Counsel of the Service 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;

(D) A practitioner is the subject of

multiple disciplinary complaints and

the Office of the General Counsel of the

Service has determined not to pursue all

of the complaints. The Office of the

General Counsel of the Service 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 Office of the General

Counsel of the Service, in the exercise

of discretion, may 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

39534 Federal Register / Vol. 65, No. 124 / Tuesday, June 27, 2000 / Rules and Regulations

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

§ 3.106(a)(v) of this chapter.

(i) Discipline of government attorneys.

Complaints regarding the conduct or

behavior of Department attorneys,

Immigration Judges, or Board Members

shall be directed to the Office of

Professional Responsibility, United

States Department of Justice. If

disciplinary action is warranted, it shall

be administered pursuant to the

Department’s attorney discipline

procedures.

Dated: June 17, 2000.

Janet Reno,

Attorney General.

[FR Doc. 00–16052 Filed 6–26–00; 8:45 am]

BILLING CODE 4410–30–U

DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection

Service

9 CFR Parts 54 and 79

[Docket No. 99–067–2]

Scrapie Pilot Projects

AGENCY: Animal and Plant Health

Inspection Service, USDA.

ACTION: Final rule.

SUMMARY: We are amending the

regulations concerning the voluntary

scrapie flock certification program and

the interstate movement of sheep and

goats to exempt flocks from certain

regulatory requirements when the flocks

are participating in scrapie control pilot

projects authorized by the Animal and

Plant Health Inspection Service. We

believe this action is necessary so that

pilot projects can achieve their goal of

furthering progress toward the

eradication of scrapie. This action will

affect a small number of flock owners

participating in scrapie control pilot

projects.

EFFECTIVE DATE: June 27, 2000.

FOR FURTHER INFORMATION CONTACT: Dr.

Diane Sutton, Senior Staff Veterinarian,

National Animal Health Programs Staff,

VS, APHIS, 4700 River Road Unit 43,

Riverdale, MD 20737–1235; (301) 734–

6954.

SUPPLEMENTARY INFORMATION:

Background

Scrapie is a degenerative and

eventually fatal disease affecting the

central nervous systems of sheep and

goats. To control the spread of scrapie

within the United States, the Animal

and Plant Health Inspection Service

(APHIS), U.S. Department of Agriculture

(USDA), administers regulations at 9

CFR part 79, which restrict the interstate

movement of certain sheep and goats.

APHIS also administers the Voluntary

Scrapie Flock Certification Program (the

VSFCP), described in the regulations at

9 CFR part 54.

On December 17, 1999, we published

in the Federal Register (64 FR 70608–

70610, Docket No. 99–067–1) a proposal

to amend 9 CFR parts 54 and 79 to add

a definition of the term scrapie control

pilot project and to allow the

Administrator to waive specified

requirements of parts 54 and 79 for

flocks participating in scrapie control

pilot projects. The purpose of the

proposal was to enhance the ability of

APHIS to work with flock owners to

develop pilot projects for scrapie control

that may involve using techniques and

procedures different from those

contained in the current regulations.

We solicited comments concerning

our proposal for 30 days ending January

18, 2000. We received seven comments

by that date. They were from a State

government, an association representing

veterinarians, two associations

representing the U.S. sheep industry,

and three individual sheep producers.

Six commenters generally supported the

proposed rule, but several suggested

changes to improve it. One commenter

opposed the proposed rule. Several of

the commenters also raised issues

outside the scope of the proposed rule.

All issues raised by the comments

pertinent to the proposed rule are

discussed below by topic.

Pilot Projects will Preserve Infected

Sheep and Delay Eradication of Scrapie

The comment opposed to the

proposed rule stated that pilot projects,

by lessening restrictions, could result in

the movement of sheep that were

potentially infected with scrapie,

spreading the disease and delaying its

eradication. This commenter stated that

sheep allowed movement by the pilot

projects would be quarantined or

destroyed under the previous

regulations. Another commenter urged

APHIS to be conservative in its approval

of pilot projects to guard against projects

that may actually contribute to the

spread of scrapie.

We are not making any change in

response to these comments.

Historically, scrapie control has not

been successful in part because

producers of sheep with valuable

genetic lines were often left with few

alternatives other than flock

depopulation. This was discouraging

and often influenced producers not to

report scrapie. The pilot projects will

allow us to evaluate methods that may

provide alternatives to flock

depopulation while minimizing the

spread of disease. It is essential to use

pilot projects to evaluate different tests

and control methods. It is our belief that

these projects will assist us in adjusting

our control and eradication programs to

be more effective and acceptable to

producers and will, therefore,

accelerate, not delay, progress toward

the eradication of scrapie. Each pilot

project will have restrictions on the

movement of sheep in the project that

are commensurate with the risk that the

sheep might spread scrapie, and these

movement restrictions and other

precautions in pilot project design

should prevent the spread of scrapie as

a result of the pilot projects.

Definition of Scrapie Control Pilot

Project

The definition proposed for the term

scrapie control pilot project was ‘‘A

pilot project authorized by the

Administrator in writing, designed to

perform research or test or improve

program procedures for scrapie control.

In addition to APHIS, participants may

include State animal health agencies,

flock owners, and other parties as

necessary.’’ Two commenters suggested

that pilot projects could contribute to

the eradication as well as the control of

scrapie, and noted that eventual

eradication of the disease is an

important goal of scrapie programs and

should be stressed. We agree.

One commenter questioned including

‘‘designed to perform research’’ in the