EOIR-28 supporting statement 2015

SUPPORTING STATEMENT
1125-0006 Notice of Entry of Appearance as Attorney or Representative
Before the Immigration Court (Form EOIR-28)
______________________________________________________________________________
Part A. Justification
1. Necessity of Information –
Background. The Department has detailed regulations regarding the
representation of private parties before the Board of Immigration Appeals (Board) and the
Immigration Courts. An alien in removal proceedings may be represented, at no expense
to the Government, by counsel who is authorized to practice before the Board and the
Immigration Courts. See Immigration and Nationality Act (INA) §§ 240(b)(4)(A), 292, 8
U.S.C. §§ 1229a(b)(4)(A), 1362 (2006); 8 C.F.R. §§ 1003.16(b), 1003.38(g) (2009). If an
alien desires to be represented before the Immigration Court by an attorney or
representative, the attorney or representative must inform the Immigration Court that s/he
is entering an appearance on behalf of that alien. An attorney or representative must file a
Notice of Entry of Appearance as Attorney or Representative Before the Immigration
Court (Form EOIR-28) to notify the Immigration Court of the representation. See 8
C.F.R. §§ 1003.17(a). The Form EOIR-28 is also served on the relevant agency of the
Department of Homeland Security (DHS) – U.S. Immigration and Customs Enforcement.
On September 17, 2014, EOIR published a Notice of Proposed Rulemaking
(NPRM) at 79 FR 55659, seeking to amend 8 CFR part 1003, to allow for the separate
appearance of an attorney or representative in custody and bond proceedings. EOIR seeks
to make changes to the Form EOIR-28 to allow a representative to designate an
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appearance type according to this proposed rule.
Information Collection. The Form EOIR-28 collects basic information about the
represented party and the attorney or representative. With respect to the represented
party, the party’s name, address, and identifying alien (A) number, where applicable,
must be provided.
With respect to the attorney or representative, the form requires information – in
the form of check boxes – about the type of representation, i.e., attorney, accredited
representative, law student or law graduate, reputable individual, accredited foreign
government official, or individual authorized to practice on December 23, 1952.
If the individual submitting the form is an attorney, the Form EOIR-28 collects
information about bar membership and standing with the bar. For example, the Form
EOIR-28 requires the attorney to indicate whether s/he is subject to any order of any court
or administrative agency disbarring, suspending, enjoining, restraining, or otherwise
restricting him or her in the practice of law. If the attorney is subject to such an order,
s/he is instructed, per the attached revisions, to not check the box indicating that s/he is an
attorney and, instead, to explain the details of such order on the reverse of the form.
If the individual is an accredited representative, as defined in 8 C.F.R. §
1292.1(a)(4), s/he must provide the name of the recognized organization with which s/he
is accredited. The language for the accredited representatives has been revised to clarify
that the representative must be accredited to appear before EOIR.
If the individual is an accredited foreign government official, the individual must
indicate, per the attached revisions, which country s/he is from.
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For all representatives, whether attorney or non-attorney, the Form EOIR-28 also
collects information about representation status. Specifically, a practitioner must indicate
whether s/he is the primary or non-primary attorney/representative and must also denote
whether s/he is providing pro bono representation.
EOIR has made a number of modifications to the current Form EOIR-28 as
necessary to implement the proposed rule allowing for separate appearances. On the first
page of the form, EOIR has added check boxes to indicate whether the person is entering
an appearance for all proceedings; custody and bond proceedings only; or all proceedings
other than custody and bond proceedings. Amendments were made to the information on
the reverse side of the form clarifying that even though separate appearances in custody
and bond proceedings are now allowed, limited appearances within those proceedings are
still not permitted.
EOIR has also added language clarifying that the practitioner, by entering his or
her appearance before EOIR, acknowledges that the practitioner will be subject to the
disciplinary rules and procedures at 8 C.F.R. 1003.101et seq., including, pursuant to 8
C.F.R. §§ 292.3(h)(3), 1003.108(c), publication of the name of the practitioner and
findings of misconduct should the practitioner be subject to any public discipline by
EOIR. Additional language was added to the form to clarify that by entering an
appearance before EOIR pursuant to the filing of a Form EOIR-28, the practitioner
consents to the publication of the practitioner’s name and any findings of misconduct by
EOIR, should the practitioner become subject to any public discipline by EOIR pursuant
to the rules and procedures at 8 C.F.R. 1003.101 et seq. This language provides

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additional notice to practitioners regarding their obligations as representatives before
EOIR and the potential consequences of any misconduct and is consistent with comments
and suggestions received from the public, as discussed further below.
Lastly, EOIR has added language to the information on the reverse side of the
Form EOIR-28 that the attorney or Accredited Representative (with full accreditation)
must register with the EOIR eRegistry in order to practice before the Immigration Court
(see 8 C.F.R. § 1292.1(f)). EOIR has provided further information that registration must
be completed online on the EOIR website at www.justice.gov/eoir, along with references
to EOIR’s Immigration Court Practice Manual for additional guidance.

2. Needs and Uses - The Form EOIR-28 allows attorneys and representatives to notify the
Immigration Court that they are representing an alien in immigration proceedings before
the Immigration Court. Upon receipt of a form that establishes an individual is an
attorney in good standing or is otherwise able to represent an alien before the Immigration
Court, the Immigration Court designates the individual as the alien’s legal representative
during proceedings before the Immigration Court. The Form EOIR-28 also allows the
Immigration Court to ensure that only individuals authorized by regulation are entering
appearances on behalf of aliens facing removal from the United States.

3. Use of Technology - The use of this form provides the most efficient means for
collecting and processing the required data. The Form EOIR-28 is available on EOIR’s
website for printing. A practitioner can type information directly into the online form and

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then print it for submission to EOIR, or s/he may print the blank form in its entirety and
complete it by typing or printing legibly. Attorneys and accredited representatives with
full accreditation may also electronically submit forms and update existing forms through
eRegistry; individuals who are not licensed attorneys or accredited representatives with
full accreditation do not have this option.

4. Efforts to Identify Duplication - The only method for an individual to enter his or her
appearance on behalf of an alien in proceedings before the Immigration Court is to
complete and file the Form EOIR-28. A review of EOIR’s forms revealed no duplication
of effort, and there is no other similar information currently available which can be used
for this purpose.

5. Impact on Small Businesses - This collection has a minor impact on small businesses
or other small entities to the extent they employ attorneys or accredited representatives
who represent parties in proceedings before the Immigration Courts. However, this
collection does not impose undue burden on the small businesses or other entities. The
form requires no filing fee, and EOIR estimates that the form takes six minutes to
complete. In addition, the requested information is needed to ensure that only attorneys
in good standing or otherwise qualified individuals are permitted to enter appearances and
represent aliens in proceedings before EOIR.

6. Consequences of Less Frequent Collection - Failure to collect this information would

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preclude individuals from entering appearances on behalf of parties in proceedings before
the Immigration Court.

7. Special Circumstances Influencing Collection - None of the eight special
circumstances identified in OMB instruction number 7 apply to this collection.

8. Federal Register Publication and Consultation - EOIR has published in the Federal
Register a Notice of Proposed Rulemaking that impacts this collection. See 79 FR 55659.
A copy of this notice is attached. EOIR received ten comments in response to this
proposed rule, three of which were substantive comments regarding this information
collection. The Catholic Legal Immigration Network, Inc., comment expressed concerns
that the changes to this information collection necessary to implement the rule might
delay finalization and implementation of the rule, and suggested that the agency provide
guidance to the immigration courts and liberally grant motions to withdraw in the interim
so as not to delay implementation. The agency has worked expeditiously to implement
the necessary changes to this information collection, so as to obviate any need for interim
guidance prior to implementation of the rule upon finalization. Another comment
received from the Louisiana State University (LSU), Paul M. Herbert Law Center,
requested the addition of check boxes on the form to indicate appearance type, along with
an attestation by the practitioner that s/he has explained the scope of their representation
to their client, and that the practitioner has obtained their client’s consent. Private
Attorney Meghan Heesch provided a similar comment suggesting that EOIR either add

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check boxes on the Form EOIR-28 to allow a practitioner to indicate which proceedings
they are entering an appearance for or to create a completely new appearance form for
custody and bond proceedings. In response to these comments, EOIR has added check
boxes to the Form EOIR-28 for the practitioner to indicate the scope of their appearance.
EOIR believes that it would be more burdensome to require a separate appearance form
for custody and bond proceedings, but instead has made amendments to the current
appearance Form EOIR-28 so that it may be used for entering an appearance in all types
of proceedings before EOIR. The Form EOIR-28 currently contains a check box for the
practitioner to indicate that s/he has received the alien’s consent for representation, and
EOIR believes that the additional language clarifying the applicability of EOIR’s
disciplinary rules and procedures to practitioners entering an appearance before EOIR
address the remainder of LSU’s concerns. The 60-day notice covering this collection will
be published in the Federal Register to solicit further comments from the public. If
comments are received, they will be considered and incorporated, as appropriate.

9. Payment or Gifts to Claimants - EOIR does not provide any payment or gifts to
parties in immigration proceedings or their attorneys or representatives.

10. Assurance of Confidentiality - The Immigration Court retains the original form and
places it in the record of proceedings, along with all other documents filed in the alien’s
proceeding. EOIR staff members and Immigration Judges who process, review, and
adjudicate the case may access the Form EOIR-28. To the extent law permits, EOIR

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protects the confidentiality of the contents of the Form EOIR-28. EOIR would release
information in accordance with the Privacy Act and the Freedom of Information Act.

11. Justification for Sensitive Questions - To the extent that the Form EOIR-28 includes a
sensitive question by asking whether an attorney is in good standing in the bar or subject
to any order of any court or administrative agency disbarring, suspending, enjoining,
restraining, or otherwise restricting him or her in the practice of law), such question is
necessary for EOIR to determine whether the individual is duly authorized to represent
aliens before the Immigration Courts. The information is used only to the extent
necessary in order to make that determination. To the extent that the Form EOIR-28
includes a sensitive question by asking whether the representation is being provided on a
pro bono basis, such question is necessary for EOIR to facilitate its pro bono program.
Under Operating Policies and Procedures Memorandum 08-01, the particular needs of pro
bono representatives who appear before EOIR should be taken into consideration. OPPM
08-01: “Facilitating Pro Bono Legal Services” (March 10, 2008), available at
http://www.justice.gov/eoir/efoia/ocij/oppm08/08-01.pdf.

12. Estimate of Hour Burden
a. Number of Respondents

175,101

b. Number of Responses per Respondent

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c. Total Annual responses

175,101

d. Hours per response

6 minutes or 0.1 hour

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e. Total annual hourly reporting burden

17,510

175,101 attorneys or representatives x 1 response per respondent x 0.1 hour per response
= 17,510 burden hours. It is estimated that the total time to read and complete the form
and gather all materials is no more than 6 minutes.

13. Estimate of Cost Burden
There are no capital or start-up costs associated with this information collection. There
are also no fees associated with filing this information collection. The estimated public
cost is a maximum of $967,777. This amount is reached by multiplying the burden hours
(17,510) by $55.27, which represents the current median hourly wage for attorneys, as set
by the Bureau of Labor Statistics. $967,777 represents the maximum estimate of cost
burden. EOIR notes that this form is submitted by an immigration practitioner, who is
either an attorney or other form of representative; as such, respondents are not likely to
retain a practitioner to assist them in filling out the form.

For those individuals who proceed without a practitioner, there is an estimated cost of
$10 per hour for completing the form (the individuals’ time and supplies) in lieu of the
practitioner cost. This amount to the individual is not included as it is less than the
estimated practitioner cost and would not add to the maximum estimate of $967,777.

14. Estimated Cost to the Federal Government - The estimated annual cost for printing,
distributing, stocking, processing, and maintaining the Form EOIR-28 is $524,137.

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15. Reasons for Change in Burden - The difference in burden is due to an agency
adjustment, specifically an decrease in the number of responses. Previously, EOIR
estimated 179,856 respondents annually. At present, there are approximately 175,101
respondents annually. As the number of hours per response remained the same (6
minutes), the total burden hours decreased from 17,985 to 17,510 burden hours, for a
difference of 475 burden hours.

16. Plans for Publication - EOIR does not intend to employ the use of statistics or the
publication thereof for this collection of information.

17. Exceptions to the Certification Statement - EOIR does not request an exception to the
certification of this information collection.

Section B. Collection of Information Employing Statistical Methods
This collection does not employ statistical methods.

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PAPERWORK CERTIFICATION

In submitting this request for Office of Management and Budget (OMB) approval, I certify that
the requirements of the Privacy Act and OMB directives have been complied with, including
paperwork regulations, any applicable statistical standards or directives, and any other
information policy directives promulgated under 5 C.F.R. § 1320.

_____________________
Helaine Perlman
Senior Counsel for Immigration
Executive Office for Immigration Review

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Date

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