By Farhad Sethna, Attorney © 2015
As attorneys, for whatever reason, we may not want to continue to represent a client. The issue becomes whether an attorney who has already entered a notice of representation before the immigration court can withdraw from that representation.
There are three sources of authority that are relevant to this discussion, and each is discussed below:
1. Form EOIR-28 (E-28): Notice of appearance
The Immigration Court seems to indicate that an attorney cannot limit representation once he or she has entered a notice of appearance before the Immigration Court. The limitation is set forth on the rear side of the form E-28 which is the “Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court”. The form goes on to say “appearances for limited purposes are not permitted.” The form cites the case “Matter of Velazquez, 19 I&N Dec 377, 384 (BIA 1986) as support for this “rule”.
A review of the case however, does not indicate a situation where an attorney may not withdraw. Rather, the case simply goes on to state that an attorney cannot withdraw, and references the reader to three separate CFR sections. Those three CFR sections are as follows:
8 CFR §292.4, and
8 CFR §292.5(a)
8 CFR §292.1: This section simply relates to the representation of others, with specific reference to attorneys who are licensed in the United States as being authorized to represent a person before the Immigration Court.
8 CFR §292.4: That section relates simply to “appearances”. It discusses that “withdrawal and/or substitution of counsel is permitted only in accordance with sections 3.16 and 3.36 of the CFR.”
It does not however restrict the ability of an attorney to limit his or her representation.
8 CFR §292.5(a) simply indicates that service of documents on a person who is represented by an attorney is accomplished by service of the document or process upon the attorney who represents the person.
Therefore, in none of these three CFR sections is there any rule against the “limited” appearance of counsel in immigration proceedings as the Board asserted in Matter of Velazquez.
Therefore, the Board and the Immigration Court’s reliance on Velazquez to restrict the ability of an attorney to limit his or her representation appears to be misplaced.
2. EOIR Practice Manual:
Turning now to the EOIR (Executive Office for Immigration Review) practice manual, which governs proceedings before the Immigration Judges in immigration court, the manual states:
Chapter 2, Section 2.3 (d):
(d) Scope of representation.- The filing of a Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28) constitutes entrance of appearance for all proceedings, including removal and bond. Once an attorney has made an appearance, that attorney has an obligation to continue representation until such time as a motion to withdraw or substitute counsel has been granted by the Immigration Court.
3. EOIR Rules for Discipline of Attorneys:
Also, consider that the EOIR has published grounds for disciplining attorneys (Federal Register, 73 FR 76914, December 18, 2008), which include the following relevant infractions:
- Engaging in rude or insulting, or obnoxious conduct that would constitute contempt of court;
- Engaging in conduct that constitutes ineffective assistance of counsel as found by an immigration judge, the BIA, or a federal court;
- Repeatedly failing to appear for scheduled pre-hearing conferences or hearings in a timely manner without good cause;
- Engaging in conduct that is prejudicial to the administration of justice;
- Failing to provide competent representation to a client;
- Failing to consult with a client concerning the objectives of the representation or abide by decisions of the client concerning how to achieve those objectives;
- Failing to act with reasonable diligence and promptness; and
- Failing to maintain communication with a client.
See also, the EOIR’s published Fact Sheet, “EOIR’s Disciplinary Program and Professional Conduct Rules for Immigration Attorneys and Representatives”, published on February 27, 2013, at: http://www.justice.gov/sites/default/files/eoir/legacy/2013/02/27/EOIRsDisciplinaryProgramFactSheet02272013.pdf [last visited September 12, 2015].
That same fact sheet also goes on to detail the procedure for handling such an issue: complaint, investigation, and Notice of Intent to Discipline (NID), followed by a response and a hearing before an Immigration Judge.
It would appear that while the case and regulations cited by the Board which restrict an attorney’s ability to limit representation may be challenged, the clear rule set forth in the EOIR practice manual and the grounds for attorney discipline published in the Federal Register pose a more difficult problem.
Naturally, one wants to be professional, courteous, and respectful of the Immigration Court – and any tribunal, for that matter – at all times. It obviously behooves attorneys, as officers of the court, to comport themselves with dignity and decorum before the tribunal.
However, it is also difficult, if not downright malpractice, for an attorney to be roped into an issue on which he or she does not represent the client. For example, a client may be in removal proceedings, but may be free on bond. During the period of the bond, the client commits some crime for which he is taken into custody by the DHS. If the client does not retain the attorney to represent him in the bond proceeding pertaining to his infraction, then is the attorney required to appear in court for these bond hearings? What if the attorney is not prepared to proceed? What if the attorney has an ethical conflict?
Under Matter of Velazquez as well as the regulations, there is no authority that would compel the attorney who has not been retained for this bond purpose, to be forced to attend to and represent the proceedings. The client would have to retain the attorney and/or retain another attorney with regard to the bond issues.
However, the EOIR practice manual rule 2.3(d) requires an attorney to represent an alien on ALL matters, once the attorney has entered a notice of appearance for the alien.
Likewise, the rules published in the Federal Register impose a heightened notice to attorneys practicing before the EOIR. Clearly, the rules identified above can be interpreted to include conduct which might include an attorney’s failure to appear at a hearing scheduled in any matter ancillary to a matter pending before the EOIR, whether the attorney believes he or she has been retained to represent the alien on this specific issue.
WHAT COULD THE COURT HOLD?
The court may perhaps hold the attorney in contempt for failure to appear or may cause disciplinary proceedings to be instituted against the attorney. The rules published in the Federal Register clearly delineate the EOIR’s authority to do so.
HOW COULD THE ATTORNEY AVOID A CONTEMPT CITATION OR EVEN AN ADMONISHMENT FROM THE COURT?
It may be argued that an attorney simply does not feel it appropriate to represent the alien on the new issue, but until the court rules on a motion to withdraw, the attorney is still required to attend scheduled hearings.
I would suggest that the attorney who does not want to or cannot handle the new matter before the immigration court should file a motion to withdraw before the Immigration Court, and explain – to the extent possible without violating attorney-client privilege – the basis for the withdrawal. If possible, attach an affidavit or statement from the alien permitting the attorney to withdraw. If the alien does not have any objection, it would be difficult for a court to force an attorney to continue representation, especially if there is sufficient time before a hearing for the alien to find a new attorney.
In my opinion therefore, while there is no specific requirement that an attorney who has been retained for a specific purpose represent a client in immigration proceedings be required by the court to appear for each and every other matter that relates to the same client before that court, the matter should be handled carefully, with the attorney making sure to file a motion to withdraw, together with appropriate supporting evidence, in order that he or she not be criticized – or worse, sanctioned – by the court.
Please review this matter very carefully with your own particular Immigration Court in your own jurisdiction or jurisdiction where you practice, because the interpretation of my analysis may be subject to debate.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.