This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

5225 

Vol. 75, No. 21 

Tuesday, February 2, 2010 

DEPARTMENT OF HOMELAND 

SECURITY 

Office of the Secretary 

8 CFR Parts 1 and 292 

RIN 1601–AA58 

[Docket No. DHS–2009–0077] 

Professional Conduct for Practitioners: 

Rules, Procedures, Representation, 

and Appearances 

AGENCY: Office of the Secretary, DHS. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Department of Homeland 

Security (DHS) is amending its 

regulations governing representation 

and appearances by, and professional 

conduct of, practitioners in immigration 

practice before its components to: 

Conform the grounds of discipline and 

procedures regulations with those 

promulgated by the Department of 

Justice (DOJ); clarify who is authorized 

to represent applicants and petitioners 

in cases before DHS; remove duplicative 

rules, procedures, and authority; 

improve the clarity and uniformity of 

the existing regulations; make technical 

and procedural changes; and conform 

terminology. This rule enhances the 

integrity of the immigration 

adjudication process by updating and 

clarifying the regulation of professional 

conduct of immigration practitioners 

who practice before DHS. 

DATES: Effective date: This interim rule 

is effective March 4, 2010. 

Comments: Written comments must 

be submitted on or before March 4, 

2010. 

ADDRESSES: Comments may be 

submitted, identified by DHS Docket 

No. DHS–2009–0077, by the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Rachel A. McCarthy, 

Disciplinary Counsel, Office of the Chief 

Counsel, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, 70 Kimball Avenue, 

Room 103, S. Burlington, VT 05403. To 

ensure proper handling, please 

reference DHS Docket No. DHS–2009– 

0077 on correspondence. This mailing 

address may also be used for paper, 

disk, or CD–ROM submissions. 

• Hand Delivery/Courier: Rachel A. 

McCarthy, Disciplinary Counsel, Office 

of the Chief Counsel, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 70 Kimball 

Avenue, Room 103, S. Burlington, VT 

05403. 

FOR FURTHER INFORMATION CONTACT: 

Rachel A. McCarthy, Disciplinary 

Counsel, Office of the Chief Counsel, 

U.S. Citizenship and Immigration 

Services, Department of Homeland 

Security, 70 Kimball Avenue, Room 

103, S. Burlington, VT 05403, telephone 

(802) 660–5043 (not a toll-free number). 

SUPPLEMENTARY INFORMATION: 

I. Public Participation 

Interested persons are invited to 

participate in this rulemaking by 

submitting written data, views, or 

arguments on all aspects of this interim 

rule. DHS also invites comments that 

relate to the economic, environmental, 

or federalism affects that might result 

from this rule. Comments that will 

provide the most assistance to DHS in 

developing these procedures will 

reference a specific portion of the rule, 

explain the reason for any 

recommended change, and include data, 

information, or authority that support 

such recommended change. 

Instructions: All submissions received 

must include the agency name and DHS 

Docket No. DHS–2009–0077 for this 

rulemaking. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov. 

II. Background 

DHS regulates immigration 

practitioners before U.S. Citizenship 

and Immigration Services (USCIS), U.S. 

Immigration and Customs Enforcement 

(ICE), and U.S. Customs and Border 

Protection (CBP). DOJ, through the 

Executive Office for Immigration 

Review (EOIR), regulates immigration 

practitioners before the Board of 

Immigration Appeals (Board) and the 

immigration courts. When DHS was 

established in 2003, DOJ duplicated the 

regulations on professional conduct for 

practitioners in the new chapter V in 8 

CFR. 

DOJ updated its rules on Professional 

Conduct for Practitioners—Rules of 

Procedures, and Representation and 

Appearances. 73 FR 44178 (July 30, 

2008) (proposed rule); 73 FR 76914 

(Dec. 18, 2008) (final rule). This interim 

final rule conforms DHS regulations to 

the DOJ regulations to maintain a 

unified, consistent practice; clarifies 

existing regulations; and eliminates 

references to procedural matters that are 

solely within the authority of DOJ. 

In preparing this interim final rule, 

DHS reviewed the DOJ proposed rule, 

the four public comments submitted on 

the DOJ proposed rule, and the DOJ 

final rule. DHS is adopting this interim 

final rule for the reasons stated in the 

DOJ final rule and also considered its 

experience in administering the 

practitioner discipline process. 

III. Changes Made by This Rule 

This interim final rule amends DHS 

regulations at 8 CFR parts 1 and 292 to: 

• Clarify who is authorized to 

represent applicants and petitioners 

before USCIS, ICE, and CBP; 

• Conform the rules governing the 

authority of DHS to investigate 

complaints; 

• Conform disciplinary charges 

against practitioners who appear before 

DHS with the regulations promulgated 

by DOJ; 

• Improve the clarity and uniformity 

of the existing rules; and 

• Incorporate miscellaneous technical 

and procedural changes necessitated by 

the creation of DHS. 

Definition of attorney. This rule 

amends the definition of ‘‘attorney’’ at 8 

CFR 1.1(f), to conform with DOJ’s 

definition at 8 CFR 1001.1(f), by adding 

the requirement that an attorney must 

be eligible to practice law in the bar of 

any State, possession, territory, or 

Commonwealth of the United States, or 

of the District of Columbia, in addition 

to the other requirements for attorneys 


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5226 Federal Register / Vol. 75, No. 21 / Tuesday, February 2, 2010 / Rules and Regulations 

set forth in that regulation. State bar 

rules uniformly require licensed 

attorneys to maintain an active status in 

order to practice law; however, there 

has been some confusion as to the 

applicability of that requirement in 

determining eligibility to appear as a 

representative before DHS. 

Definition of practice. This rule 

amends the definition of the term 

‘‘practice’’ at 8 CFR 1.1(i) to reflect the 

creation of DHS, the transfer of the 

functions of the former Immigration and 

Naturalization Service (INS), and to 

update the definition to eliminate 

references to representational activities 

that occur before DOJ. 

Definition of preparation. This rule 

amends the definition of the term 

‘‘preparation’’ at 8 CFR 1.1(k) to reflect 

the creation of DHS and the transfer of 

the functions of the former INS to DHS. 

Definition of representation. This rule 

amends the definition of the term 

‘‘representation’’ at 8 CFR 1.1(m) to 

reflect the creation of DHS, the transfer 

of the functions of the former INS, and 

to eliminate the reference to 

representational activities that occur 

before DOJ. 

Representation of others. This rule 

amends 8 CFR 292.1(a) to include a 

reference to the limitations on 

appearances in application and petition 

proceedings in 8 CFR 103.2(a)(3) and 

amends 8 CFR 292.1(a)(2) to clarify that 

law students and law graduates as 

defined under 8 CFR 1292.1(a)(4) 

appearing before DHS must be students 

or graduates of accredited law schools 

in the United States. There have been 

many instances of graduates of foreign 

law schools attempting to represent 

parties in DHS proceedings under this 

provision and this clarification is 

necessary to ensure that only eligible 

individuals are permitted to appear as 

representatives in immigration 

proceedings. This rule also amends 8 

CFR 292.1(a)(2) and (6) to reflect the 

creation of DHS and the transfer of the 

functions of the former INS. 

Grounds of discipline. This rule 

adopts the grounds of discipline in 8 

CFR 1003.102 in their entirety and 

applies those grounds of discipline to 

practitioners before DHS. 8 CFR 

292.3(b). Under this provision, DHS 

may seek disciplinary sanctions against 

a practitioner who falls within one or 

more of the categories enumerated in 8 

CFR 1003.102, as revised by DOJ. By 

adopting all of the grounds of 

discipline, this rule clarifies that 8 CFR 

1003.102(k) and (l) apply as grounds for 

discipline by DHS as well as EOIR. This 

change will encourage practitioners to 

timely appear for scheduled interviews 

and other case-related meetings before 

DHS officials and to properly represent 

their clients in DHS proceedings. 

Immediate suspension. This rule 

amends 8 CFR 292.3(c) to clarify that 

DHS may petition to the Board for the 

immediate suspension of an attorney 

who, while a disciplinary investigation 

or proceeding is pending, has resigned 

from practice before the highest court of 

any State, possession, territory, or 

Commonwealth of the United States, or 

the District of Columbia, or any Federal 

Court, or who has been placed on an 

interim suspension by such body 

pending a final resolution of the 

underlying disciplinary matter. This 

change would conform the language in 

DHS regulations to the DOJ rule. 

Preliminary inquiry report. In this 

rule, 8 CFR 292.3(c)(3), as revised, limits 

the circumstances under which DHS 

will prepare and serve a copy of a 

preliminary inquiry report on the 

practitioner with the Notice of Intent to 

Discipline. In summary disciplinary 

proceedings, DHS must file a certified 

copy of the order, judgment and/or 

record evidencing the underlying 

criminal conviction or discipline with 

the Board along with the Notice of 

Intent to Discipline. Current regulations 

require that DHS file a preliminary 

inquiry report with all Notices of Intent 

to Discipline. A preliminary inquiry 

report summarizes the source of any 

information uncovered in the 

investigation of a disciplinary 

complaint, including the administrative 

record of immigration proceedings, a 

record of state disciplinary proceedings, 

or a record of criminal conviction. In 

summary disciplinary proceedings 

before the Board based upon a 

conviction for a serious crime, 

resignation while a disciplinary 

investigation or proceeding is pending, 

or disciplinary action by a court or other 

disciplinary authority under 8 CFR 

1003.103(b)(2), the preliminary inquiry 

report summarizes records that are 

included in the disciplinary proceeding 

file as attachments to the Petition for 

Immediate Suspension or the Notice of 

Intent to Discipline. In all other cases, 

DHS will issue a Notice of Intent to 

Discipline to the practitioner containing 

a statement of the charge(s) and a 

preliminary inquiry report. The rule 

also clarifies that DHS will promptly 

initiate summary disciplinary 

proceedings against any practitioner 

upon receipt of certified copies of the 

required documents. 

Public notice of suspension. This rule 

revises 8 CFR 292.3(h)(3) to clarify that 

DHS may publicly post notices of 

immediate suspension. This change is 

necessary to ensure consistency with 

DOJ regulations at 8 CFR 1003.106(c), 

which currently provide that notice of 

disciplinary sanctions may be posted 

publicly. 

Filing of complaints of misconduct 

occurring before DHS. This rule revises 

the procedures in 8 CFR 292.3(d) for 

filing complaints with allegations of 

professional misconduct by 

practitioners in matters before DHS. The 

changes are necessary to reflect current 

requirements resulting from the creation 

of DHS and its component agencies. 

Finally, this rule includes technical 

changes such as removing references to 

the ‘‘Office of the General Counsel of the 

Service,’’ the ‘‘Immigration and 

Naturalization Service,’’ or ‘‘INS,’’ and 

other out-of-date terms to conform the 

regulations with current DHS 

terminology and structure. This rule 

corrects technical errors, and 

implements minor changes to improve 

regulatory structure and readability in 

the affected sections. 

IV. Administrative Procedure Act 

This rule relates to agency practice 

and procedure and is not subject to the 

requirements of advance notice and 

comment under the Administrative 

Procedure Act, 5 U.S.C. 553(b)(A). To 

the extent that this interim final rule is 

a rule of agency practice and procedure 

under 5 U.S.C. 553(b)(A), DHS is 

requesting public comments as a matter 

of discretion. 

Moreover, to the extent that a 

provision of this rule could be 

construed as not being a matter of 

agency procedure, DHS has determined 

that delaying the effect of this rule 

during the period of public comment 

would be impractical, unnecessary and 

contrary to the public interest. If the 

implementation of the provisions of this 

rule were delayed pending public 

comments, the Board of Immigration 

Appeals and Adjudicating Officials 

would be required to conduct 

practitioner disciplinary proceedings 

under one set of regulations for cases 

initiated by EOIR disciplinary counsel 

and under another for cases initiated by 

DHS disciplinary counsel. As discussed 

above, DOJ has promulgated a final rule 

amending the relevant rules of 

professional conduct for practitioners 

and representation and appearances. 73 

FR 76914 (Dec. 18, 2008). As a result of 

the amendments made by the DOJ rule, 

some provisions of the existing DHS 

regulations are inconsistent with the 

DOJ regulations on the same subject 

matter for immigration practitioners in a 

separate but often overlapping practice 

area. Therefore, to avoid this result, 

DHS has determined that this rule 

should be implemented as soon as 

possible to avoid disparate or 


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inconsistent disciplinary standards. 

This rule conforms to the DOJ rule. In 

promulgating this final rule, DHS has 

considered the record of proceedings 

before DOJ, including the public 

comments. 

Accordingly, DHS has determined 

that it would be impractical, 

unnecessary and contrary to the public 

interest to delay promulgation of this 

rule pending review of public 

comments. 5 U.S.C. 553(b)(B). This 

interim final rule is effective 30 days 

after publication in the Federal 

Register. DHS invites comments and 

will address those comments in the final 

rule. 

V. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601–612, as amended by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (Pub. 

L. 104–121), requires Federal agencies 

to consider the potential impact of 

regulations on small businesses, small 

governmental jurisdictions, and small 

organizations during the development of 

their rules. When a rule is exempt from 

APA notice and comment requirements, 

however, the RFA does not require an 

agency to prepare a regulatory flexibility 

analysis. This rule makes changes for 

which notice and comment are not 

required under the APA; therefore DHS 

is not required to prepare a regulatory 

flexibility analysis for this rule. 

VI. Unfunded Mandates Reform Act of 

1995 

This rule will not result in the 

expenditure by State, local and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

VII. Small Business Regulatory 

Enforcement Fairness Act of 1996 

This rule is not a major rule as 

defined by the Small Business 

Regulatory Enforcement Act of 1996. 5 

U.S.C. 804(2). This rule will not result 

in an annual effect on the economy of 

$100 million or more; a major increase 

in costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

VIII. Executive Order 12866 

This rule is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866, section 3(f). This rule adds 

no costs to the agency, imposes no 

direct costs to the public, has no 

budgetary impact, nor does it raise any 

novel legal or policy issues. Thus, the 

Office of Management and Budget 

(OMB) has not reviewed this rule. 

IX. Executive Order 13132 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the National 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

X. Executive Order 12988 Civil Justice 

Reform 

This rule meets the applicable 

standards set forth in sections 3(a) and 

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

XI. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, Public Law 104–13, all 

Departments are required to submit to 

OMB, for review and approval, any 

reporting requirements inherent in a 

rule. This rule does not impose any 

new, or modify an existing, reporting or 

recordkeeping requirements under the 

Paperwork Reduction Act. 

List of Subjects 

8 CFR Part 1 

Administrative practice and 

procedures, Immigration. 

8 CFR Part 292 

Administrative practice and 

procedures, Immigration, Lawyer, 

Reporting and recordkeeping 

requirements. 

■ Accordingly, chapter I of title 8 of the 

Code of Federal Regulations is amended 

as follows: 

PART 1—DEFINITIONS 

■ 1. The authority citation for part 1 is 

revised to read as follows: 

Authority: 5 U.S.C. 301; 6 U.S.C. 112; 8 

U.S.C. 1101 and 1103. 

■ 2. Section 1.1 is amended by revising 

paragraphs (b), (f) (i), (k), and (m) to 

read as follows: 

§ 1.1 Definitions. 

* * * * * 

(b) The term Act or INA means the 

Immigration and Nationality Act, as 

amended. 

* * * * * 

(f) The term attorney means any 

person who is eligible to practice law in, 

and is a member in good standing of the 

bar of, the highest court of any State, 

possession, territory, or Commonwealth 

of the United States, or of the District of 

Columbia, and is not under any order 

suspending, enjoining, restraining, 

disbarring, or otherwise restricting him 

or her in the practice of law. 

* * * * * 

(i) The term practice means the act or 

acts of any person appearing in any 

case, either in person or through the 

preparation or filing of any brief or other 

document, paper, application, or 

petition on behalf of another person or 

client before or with DHS. 

* * * * * 

(k) The term preparation, constituting 

practice, means the study of the facts of 

a case and the applicable laws, coupled 

with the giving of advice and auxiliary 

activities, including the incidental 

preparation of papers, but does not 

include the lawful functions of a notary 

public or service consisting solely of 

assistance in the completion of blank 

spaces on printed DHS forms, by one 

whose remuneration, if any, is nominal 

and who does not hold himself or 

herself out as qualified in legal matters 

or in immigration and naturalization 

procedure. 

* * * * * 

(m) The term representation before 

DHS includes practice and preparation 

as defined in paragraphs (i) and (k) of 

this section. 

* * * * * 

PART 292—REPRESENTATION AND 

APPEARANCES 

■ 3. The authority citation for part 292 

is revised to read as follows: 

Authority: 6 U.S.C. 112; 8 U.S.C. 1103, 

1252b, 1362. 

■ 4. Section 292.1 is amended by: 

■ a. Revising paragraph (a) introductory 

text; 

■ b. Revising paragraphs (a)(2) 

introductory text and (a)(2)(iv); 

■ c. Revising paragraph (a)(3)(iv); and 

by 

■ d. Revising paragraph (a)(6). 

The revisions read as follows: 

§ 292.1 Representation of others. 

(a) A person entitled to representation 

may be represented by any of the 

following, subject to the limitations in 8 

CFR 103.2(a)(3): 

* * * * * 


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(2) Law students and law graduates 

not yet admitted to the bar. A law 

student who is enrolled in an accredited 

U.S. law school, or a graduate of an 

accredited U.S. law school who is not 

yet admitted to the bar, provided that: 

* * * * * 

(iv) The law student’s or law 

graduate’s appearance is permitted by 

the DHS official before whom he or she 

wishes to appear. The DHS official may 

require that a law student be 

accompanied by the supervising faculty 

member, attorney, or accredited 

representative. 

(3) * * * 

(iv) His or her appearance is 

permitted by the DHS official before 

whom he or she seeks to appear, 

provided that such permission will not 

be granted with respect to any 

individual who regularly engages in 

immigration and naturalization practice 

or preparation, or holds himself or 

herself out to the public as qualified to 

do so. 

* * * * * 

(6) Attorneys outside the United 

States. An attorney, other than one 

described in 8 CFR 1.1(f), who is 

licensed to practice law and is in good 

standing in a court of general 

jurisdiction of the country in which he 

or she resides and who is engaged in 

such practice, may represent parties in 

matters before DHS, provided that he or 

she represents persons only in matters 

outside the geographical confines of the 

United States as defined in section 

101(a)(38) of the Act, and that the DHS 

official before whom he or she wishes 

to appear allows such representation as 

a matter of discretion. 

* * * * * 

■ 4. 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 

(Board) may impose disciplinary 

sanctions against any practitioner if it 

finds it to be in the public interest to do 

so. It will be in the public interest to 

impose disciplinary sanctions against a 

practitioner who is authorized to 

practice before DHS when such person 

has engaged in criminal, unethical, or 

unprofessional conduct, or in frivolous 

behavior, as set forth in 8 CFR 1003.102. 

In accordance with the disciplinary 

proceedings set forth in 8 CFR part 

1003, an adjudicating official or the 

Board may impose any of the following 

disciplinary sanctions: 

(i) Expulsion which is permanent, 

from practice before the Board and the 

Immigration Courts, or DHS, or before 

all three authorities; 

(ii) Suspension, including immediate 

suspension, from practice before the 

Board and the Immigration Courts, or 

DHS, or before all three authorities; 

(iii) Public or private censure; or 

(iv) Such other disciplinary sanctions 

as the adjudicating official or the Board 

deems appropriate. 

(2) Persons subject to sanctions. 

Persons subject to sanctions include any 

practitioner. A practitioner is any 

attorney as defined in 8 CFR 1.1(f) who 

does not represent the federal 

government, or any representative as 

defined in 8 CFR 1.1(j). Attorneys 

employed by DHS will be subject to 

discipline pursuant to paragraph (i) of 

this section. 

(b) Grounds of discipline. It is deemed 

to be in the public interest for the 

adjudicating official or the Board to 

impose disciplinary sanctions as 

described in paragraph (a)(1) of this 

section against any practitioner who 

falls within one or more of the 

categories enumerated in 8 CFR 

1003.102. These categories do not 

constitute the exclusive grounds for 

which disciplinary sanctions may be 

imposed in the public interest. Nothing 

in this regulation should be read to 

denigrate the practitioner’s duty to 

represent zealously his or her client 

within the bounds of the law. 

(c) Immediate suspension and 

summary disciplinary proceedings; duty 

of practitioner to notify DHS of 

conviction or discipline. (1) Immediate 

suspension proceedings. Immediate 

suspension proceedings will be 

conducted in accordance with the 

provisions set forth in 8 CFR 1003.103. 

DHS shall file a petition with the Board 

to suspend immediately from practice 

before DHS any practitioner who has 

been found guilty of, or pleaded guilty 

or nolo contendere to, a serious crime, 

as defined in 8 CFR 1003.102(h), any 

practitioner who has been suspended or 

disbarred by, or while a disciplinary 

investigation or proceeding is pending 

has resigned from, the highest court of 

any State, possession, territory, or 

Commonwealth of the United States, or 

the District of Columbia, or any Federal 

court; or who has been placed on an 

interim suspension pending a final 

resolution of the underlying 

disciplinary matter. 

(2) Copies and proof of service. A 

copy of the petition will be forwarded 

to EOIR, which may submit a written 

request to the Board that entry of any 

order immediately suspending a 

practitioner before DHS also apply to 

the practitioner’s authority to practice 

before the Board and the Immigration 

Courts. Proof of service on the 

practitioner of EOIR’s request to 

broaden the scope of any immediate 

suspension must be filed with the 

Board. 

(3) Summary disciplinary 

proceedings. Summary disciplinary 

proceedings will be conducted in 

accordance with the provisions set forth 

in 8 CFR 1003.103. DHS shall promptly 

initiate summary disciplinary 

proceedings against any practitioner 

described in paragraph (c)(1) of this 

section by the issuance of a Notice of 

Intent to Discipline, upon receipt of a 

certified copy of the order, judgment, 

and/or record evidencing the underlying 

criminal conviction, discipline, or 

resignation, and accompanied by a 

certified copy of such document. Delays 

in initiation of summary disciplinary 

proceedings under this section will not 

impact an immediate suspension 

imposed pursuant to paragraph (c)(1) of 

this section. Any such proceeding will 

not be concluded until all direct appeals 

from an underlying criminal conviction 

have been completed. 

(4) Duty of practitioner to notify DHS 

of conviction or discipline. Within 30 

days of the issuance of the initial order, 

even if an appeal of the conviction or 

discipline is pending, of any conviction 

or discipline for professional 

misconduct entered on or after July 27, 

2000, a practitioner must notify DHS 

disciplinary counsel if the practitioner 

has been: Found guilty of, or pleaded 

guilty or nolo contendere to, a serious 

crime, as defined in 8 CFR 1003.102(h); 

suspended or disbarred by, or while a 

disciplinary investigation or proceeding 

is pending has resigned from, the 

highest court of any State, possession, 

territory, or Commonwealth of the 

United States, or the District of 

Columbia, or any Federal court; or 

placed on an interim suspension 

pending a final resolution of the 

underlying disciplinary matter. Failure 

to notify DHS disciplinary counsel as 

required may result in immediate 

suspension as set forth in paragraph 

(c)(1) of this section. 

(d) Filing of complaints of misconduct 

occurring before DHS; preliminary 

inquiry; resolutions; referral of 

complaints. (1) Filing of complaints of 

misconduct occurring before DHS. 

Complaints of criminal, unethical, or 

unprofessional conduct, or of frivolous 

behavior by a practitioner before DHS 

must be filed with the DHS disciplinary 

counsel. Disciplinary complaints must 

be submitted in writing and must state 

in detail the information that supports 

the basis for the complaint, including, 


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Federal Register / Vol. 75, No. 21 / Tuesday, February 2, 2010 / Rules and Regulations 5229 

but not limited to, the names and 

addresses of the complainant and the 

practitioner, the date(s) of the conduct 

or behavior, the nature of the conduct or 

behavior, the individuals involved, the 

harm or damages sustained by the 

complainant, and any other relevant 

information. The DHS disciplinary 

counsel will notify EOIR disciplinary 

counsel of any disciplinary complaint 

that pertains, in whole or in part, to a 

matter before the Board or the 

Immigration Courts. 

(2) Preliminary inquiry. Upon receipt 

of a disciplinary complaint or on its 

own initiative, the DHS disciplinary 

counsel will initiate a preliminary 

inquiry. If a complaint is filed by a 

client or former client, the complainant 

thereby waives the attorney-client 

privilege and any other applicable 

privilege, to the extent necessary to 

conduct a preliminary inquiry and any 

subsequent proceeding based thereon. If 

the DHS disciplinary counsel 

determines that a complaint is without 

merit, no further action will be taken. 

The DHS disciplinary counsel may, in 

his or her discretion, close a preliminary 

inquiry if the complainant fails to 

comply with reasonable requests for 

assistance, information, or 

documentation. The complainant and 

the practitioner will be notified of any 

such determination in writing. 

(3) Resolutions reached prior to the 

issuance of a Notice of Intent to 

Discipline. The DHS disciplinary 

counsel may, in his or her discretion, 

issue warning letters and admonitions, 

and may enter into agreements in lieu 

of discipline, prior to the issuance of a 

Notice of Intent to Discipline. 

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

Issuance of Notice to Practitioner. If, 

upon completion of the preliminary 

inquiry, the DHS disciplinary counsel 

determines that sufficient prima facie 

evidence exists to warrant charging a 

practitioner with professional 

misconduct as set forth in 8 CFR 

1003.102, it will file with the Board and 

issue to the practitioner who was the 

subject of the preliminary inquiry a 

Notice of Intent to Discipline. Service of 

this notice will be made upon the 

practitioner by either certified mail to 

his or her last known address, as 

defined in paragraph (e)(2) of this 

section, or by personal delivery. Such 

notice shall contain a statement of the 

charge(s), a copy of the preliminary 

inquiry report, the proposed 

disciplinary sanctions to be imposed, 

the procedure for filing an answer or 

requesting a hearing, and the mailing 

address and telephone number of the 

Board. In summary disciplinary 

proceedings brought pursuant to 

§ 292.3(c), a preliminary inquiry report 

is not required to be filed with the 

Notice of Intent to Discipline. Notice of 

Intent to Discipline proceedings will be 

conducted in accordance with the 

provisions set forth in 8 CFR 1003.105 

and 1003.106. 

(2) Practitioner’s address. For the 

purposes of this section, the last known 

address of a practitioner is the 

practitioner’s address as it appears in 

DHS records if the practitioner is 

actively representing an applicant or 

petitioner before DHS on the date the 

DHS disciplinary counsel issues the 

Notice of Intent to Discipline. If the 

practitioner does not have a matter 

pending before DHS on the date of the 

issuance of a Notice of Intent to 

Discipline, then the last known address 

for a practitioner will be as follows: 

(i) Attorneys in the United States: The 

attorney’s address that is on record with 

a state jurisdiction that licensed the 

attorney to practice law. 

(ii) Accredited representatives: The 

address of a recognized organization 

with which the accredited 

representative is affiliated. 

(iii) Accredited officials: The address 

of the embassy of the foreign 

government that employs the accredited 

official. 

(iv) All other practitioners: The 

address for the practitioner that appears 

in DHS records for the application or 

petition proceeding in which the DHS 

official permitted the practitioner to 

appear. 

(3) Copy of Notice to EOIR; reciprocity 

of disciplinary sanctions. A copy of the 

Notice of Intent to Discipline shall be 

forwarded to the EOIR disciplinary 

counsel. Under Department of Justice 

regulations in 8 CFR chapter V, the 

EOIR disciplinary counsel may submit a 

written request to the Board or the 

adjudicating official requesting that any 

discipline imposed upon a practitioner 

which restricts his or her authority to 

practice before DHS also apply to the 

practitioner’s authority to practice 

before the Board and the Immigration 

Courts. Proof of service on the 

practitioner of any request to broaden 

the scope of the proposed discipline 

must be filed with the Board or the 

adjudicating official. 

(4) Answer. The practitioner shall file 

a written answer or a written request for 

a hearing to the Notice of Intent to 

Discipline in accordance with 8 CFR 

1003.105. If a practitioner fails to file a 

timely answer, proceedings will be 

conducted according to 8 CFR 1003.105. 

(f) Right to be heard and disposition; 

decision; appeal; and reinstatement 

after expulsion or suspension. Upon the 

filing of an answer, the matter shall be 

heard, decided, and appeals filed 

according to the procedures set forth in 

8 CFR 1003.106. Reinstatement 

proceedings after expulsion or 

suspension shall be conducted 

according to the procedures set forth in 

8 CFR 1003.107. 

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

of, initiating disciplinary proceedings 

against a practitioner, the DHS 

disciplinary counsel may notify any 

appropriate Federal and/or state 

disciplinary or regulatory authority of 

any complaint filed against a 

practitioner. Any final administrative 

decision imposing sanctions against a 

practitioner (other than a private 

censure) will be reported to any such 

disciplinary or regulatory authority in 

every jurisdiction where the disciplined 

practitioner is admitted or otherwise 

authorized to practice. 

(h) Confidentiality. (1) Complaints 

and preliminary inquiries. Except as 

otherwise provided by law or regulation 

or as authorized by this regulation, 

information concerning complaints or 

preliminary inquiries is confidential. A 

practitioner whose conduct is the 

subject of a complaint or preliminary 

inquiry, however, may waive 

confidentiality, except that the DHS 

disciplinary counsel may decline to 

permit a waiver of confidentiality if it is 

determined that an ongoing preliminary 

inquiry may be substantially prejudiced 

by a public disclosure before the filing 

of a Notice of Intent to Discipline. 

(i) Disclosure of information for the 

purpose of protecting the public. The 

DHS disciplinary counsel may disclose 

information concerning a complaint or 

preliminary inquiry for the protection of 

the public when the necessity for 

disclosing information outweighs the 

necessity for preserving confidentiality 

in circumstances including, but not 

limited to, the following: 

(A) A practitioner has caused, or is 

likely to cause, harm to client(s), the 

public, or the administration of justice, 

such that the public or specific 

individuals should be advised of the 

nature of the allegations. If disclosure of 

information is made pursuant to this 

paragraph, the DHS disciplinary counsel 

may define the scope of information 

disseminated and may limit the 

disclosure of information to specified 

individuals or entities; 

(B) A practitioner has committed 

criminal acts or is under investigation 

by law enforcement authorities; 

(C) A practitioner is under 

investigation by a disciplinary or 

regulatory authority, or has committed 

acts or made omissions that may 

reasonably result in investigation by 

such an authority; 


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5230 Federal Register / Vol. 75, No. 21 / Tuesday, February 2, 2010 / Rules and Regulations 

(D) A practitioner is the subject of 

multiple disciplinary complaints and 

the DHS disciplinary counsel has 

determined not to pursue all of the 

complaints. The DHS disciplinary 

counsel may inform complainants 

whose allegations have not been 

pursued of the status of any other 

preliminary inquiries or the manner in 

which any other complaint(s) against 

the practitioner have been resolved. 

(ii) Disclosure of information for the 

purpose of conducting a preliminary 

inquiry. The DHS disciplinary counsel 

may, in his or her discretion, disclose 

documents and information concerning 

complaints and preliminary inquiries to 

the following individuals or entities: 

(A) To witnesses or potential 

witnesses in conjunction with a 

complaint or preliminary inquiry; 

(B) To other governmental agencies 

responsible for the enforcement of civil 

or criminal laws; 

(C) To agencies and other 

jurisdictions responsible for conducting 

disciplinary investigations or 

proceedings; 

(D) To the complainant or a lawful 

designee; and 

(E) To the practitioner who is the 

subject of the complaint or preliminary 

inquiry or the practitioner’s counsel of 

record. 

(2) Resolutions reached prior to the 

issuance of a Notice of Intent to 

Discipline. Resolutions, such as warning 

letters, admonitions, and agreements in 

lieu of discipline, reached prior to the 

issuance of a Notice of Intent to 

Discipline, will remain confidential. 

However, such resolutions may become 

part of the public record if the 

practitioner becomes subject to a 

subsequent Notice of Intent to 

Discipline. 

(3) Notices of Intent to Discipline and 

action subsequent thereto. Notices of 

Intent to Discipline and any action that 

takes place subsequent to their issuance, 

except for the imposition of private 

censures, may be disclosed to the 

public, except that private censures may 

become part of the public record if 

introduced as evidence of a prior record 

of discipline in any subsequent 

disciplinary proceeding. Settlement 

agreements reached after the issuance of 

a Notice of Intent to Discipline may be 

disclosed to the public upon final 

approval by the adjudicating official or 

the Board. Disciplinary hearings are 

open to the public, except as noted in 

8 CFR 1003.106(a)(v). 

(i) Discipline of government attorneys. 

Complaints regarding the conduct or 

behavior of DHS attorneys shall be 

directed to the Office of the Inspector 

General, DHS. If disciplinary action is 

warranted, it will be administered 

pursuant to the Department’s attorney 

discipline procedures. 

■ 5. Section 292.4 is amended by: 

■ a. Revising paragraph (a); and 

■ b. Revising the term ‘‘Service’’ to read 

‘‘DHS’’ wherever that term appears in 

paragraph (b). 

The revisions read as follows: 

§ 292.4 Appearances. 

(a) Authority to appear and act. An 

appearance must be filed on the 

appropriate form as prescribed by DHS 

by the attorney or accredited 

representative appearing in each case. 

The form must be properly completed 

and signed by the petitioner, applicant, 

or respondent to authorize 

representation in order for the 

appearance to be recognized by DHS. 

The appearance will be recognized by 

the specific immigration component of 

DHS in which it was filed until the 

conclusion of the matter for which it 

was entered. This does not change the 

requirement that a new form must be 

filed with an appeal filed with the 

Administrative Appeals Office of 

USCIS. Substitution may be permitted 

upon the written withdrawal of the 

attorney or accredited representative of 

record or upon the filing of a new form 

by a new attorney or accredited 

representative. When an appearance is 

made by a person acting in a 

representative capacity, his or her 

personal appearance or signature will 

constitute a representation that under 

the provisions of this chapter he or she 

is authorized and qualified to appear as 

a representative as provided in 8 CFR 

103.2(a)(3) and 292.1. Further proof of 

authority to act in a representative 

capacity may be required. 

* * * * * 

§ 292.6 [Amended] 

■ 6. Section 292.6 is amended by 

revising the term ‘‘part 3 of this chapter’’ 

to read ‘‘8 CFR part 1003’’. 

Janet Napolitano, 

Secretary. 

[FR Doc. 2010–2149 Filed 2–1–10; 8:45 am] 

BILLING CODE 9110–9B–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 97 

[Docket No. 30707; Amdt. No. 3358] 

Standard Instrument Approach 

Procedures, and Takeoff Minimums 

and Obstacle Departure Procedures; 

Miscellaneous Amendments 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This establishes, amends, 

suspends, or revokes Standard 

Instrument Approach Procedures 

(SIAPs) and associated Takeoff 

Minimums and Obstacle Departure 

Procedures for operations at certain 

airports. These regulatory actions are 

needed because of the adoption of new 

or revised criteria, or because of changes 

occurring in the National Airspace 

System, such as the commissioning of 

new navigational facilities, adding new 

obstacles, or changing air traffic 

requirements. These changes are 

designed to provide safe and efficient 

use of the navigable airspace and to 

promote safe flight operations under 

instrument flight rules at the affected 

airports. 

DATES: This rule is effective February 2, 

2010. The compliance date for each 

SIAP, associated Takeoff Minimums, 

and ODP is specified in the amendatory 

provisions. 

The incorporation by reference of 

certain publications listed in the 

regulations is approved by the Director 

of the Federal Register as of February 2, 

2010. 

ADDRESSES: Availability of matters 

incorporated by reference in the 

amendment is as follows: 

For Examination— 

1. FAA Rules Docket, FAA 

Headquarters Building, 800 

Independence Avenue, SW., 

Washington, DC 20591; 

2. The FAA Regional Office of the 

region in which the affected airport is 

located; 

3. The National Flight Procedures 

Office, 6500 South MacArthur Blvd., 

Oklahoma City, OK 73169 or 

4. The National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to: http://www.archives.gov/ 

federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

Availability—All SIAPs and Takeoff 

Minimums and ODPs are available 


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