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New Regulation allows attorneys to enter limited appearances in Immigration Court

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By Attorney Farhad Sethna ©2015

Prior to this new regulation, when an attorney entered an appearance for a client who was in immigration proceedings (removal proceedings or deportation as it was previously called), that attorney was bound to represent the alien throughout the proceedings, and in all aspects of the proceedings, unless the alien specifically allowed the attorney to withdraw and/or the immigration judge permitted the attorney to withdraw. See my previous article on this topic, elsewhere on this blog.

In a welcome change to this onerous requirement, the immigration court, which is called the “Executive Office for Immigration Review”, and is part of the U.S. Department of Justice, enacted a new regulation on October 1, 2015. (See, Federal Register, Volume 80, Number 190, Thursday, October 1, 2015, at page 59500). This regulation becomes effective on December 7, 2015.

The EOIR essentially divided immigration proceedings into two parts: Bond or custody proceedings; and all other immigration proceedings.

An attorney now entering an appearance can chose to represent the alien in one or both parts of the proceeding. Those two parts are the initial bond or custody portion (to determine whether an alien may be released on bond, or other elements of the alien’s custody may be changed), and the merits portion, where the alien argues against removal (previously called deportation) from the United States. For instance, an attorney who is representing the alien only in bond or custody proceedings may check off his representation as limited to only the bond portion of the removal proceedings. The alien, if he or she chooses, may then retain another attorney for the merits portion of the immigration proceedings.

Likewise, an alien may secure release on bond himself or herself, or through the efforts of a pro bono attorney. However, that pro bono attorney may not be willing to continue to represent the alien in future proceedings. In that case, the pro-bono attorney can enter a limited representation before the immigration court for only the bond and custody proceedings. The alien can then choose a new attorney or retain the original attorney for the merit proceedings.

In promulgating the new rule, the EOIR stated:

“The benefits of this final rule increase representation of detained individuals by permitting a representative to enter an appearance before the Immigration Court for the discreet task of securing a bond or release from detention, without requiring the representative also to represent the individual in all the individual’s immigration proceedings. The public will benefit from this amendment to the regulations, because the amendment will make it easier for individuals who may not be able to afford to hire an attorney before the Immigration Court to at least be able to be able to be represented during their custody and bond proceedings.”

In order to effectuate this rule, the EOIR will be revising the current form E-28, which is the notice of appearance by an attorney or representative before the Immigration Court. The new EOIR-28 will include check boxes for the representative to indicate one of three choices: all immigration proceedings; custody and bond proceedings only; and all proceedings other than custody and bond proceedings. An attorney who did not file an E-28 entering representation for an alien for a particular phase of the proceedings will need to do so prior to appearing before the EOIR.

CAVEAT: Please note once again, that this new regulation becomes effective December 7, 2015. Until such time, attorneys will be fully responsible for cases in which they filed an E-28. In another article on this blog, I have discussed the legal requirements that compel continued representation and the process for being permitted to withdraw.



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.

October 11, 2015 Farhad Sethna

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