McCormick Pavilion, 415 Michigan Avenue, N.E., Washington, DC 20017 Tel: (202) 635-2556 Fax: (202) 635-2649, www.cliniclegal.org March 30, 2012 Lauren Alder-Reid Counsel for Legislative and Public Affairs Executive Office for Immigration Review U.S. Department of Justice 5107 Leesburg Pike Falls Church, VA 22041 VIA E-MAIL: PAO.EOIR@usdoj.gov RE: Comments Re: Proposed Changes to Regulations Governing Recognition and Accreditation [EOIR Docket No. 176] Dear Ms. Alder-Reid: The Catholic Legal Immigration Network, Inc. (CLINIC) submits these comments in response to the request for public comment by the Executive Office for Immigration Review (EOIR) on the agency's proposal to amend the regulations governing the recognition of organizations and accreditation of representatives who appear before EOIR. These comments should be considered along with those made by CLINIC staff in person at the two public meetings held on March 14 and 21 and our written comments submitted on March 6. CLINIC supports a national network of community-based legal immigration services programs. The network includes over 210 affiliated immigration programs, which operate out of 350 offices in 47 states. CLINIC s network employs roughly 1,200 staff including attorneys and accredited representatives who, in turn, serve over 700,000 low income immigrants each year. CLINIC and its member agencies serve family-based immigration applicants as well as vulnerable migrants such as victims of trafficking and crimes, refugees, asylees, VAWA petitioners, Special Immigrant Juveniles, persons in removal proceedings and TPS applicants for free or on a slidingscale basis. CLINIC is pleased that EOIR is considering amending the regulations regarding recognition and accreditation at 8 CFR 1292.2. We appreciate the agency s desire to make the program uniform and to monitor it for potential fraud and unauthorized practice. We respectfully submit the following comments on behalf of our network.
Required Documentation to Establish Eligibility Recognition To establish eligibility, an organization must demonstrate that it is a non-profit religious, charitable, social service, or similar organization established in the United States (8 CFR 1292.2(a)). EOIR should therefore limit its documentation requirement to evidence of the organization s non-profit mission. In addition to evidence of the charitable nature of the organization, required evidence should also focus on the organization s accountability to the community it serves, through documentation regarding the organization s governance structure and oversight. In order to encourage organizations to seek recognition, the amount of documentation required should not impose a burden on programs. Required evidence should consist of material that an organization would already collect and prepare. Any legitimate organization would be able to provide as part of its application for recognition: its mission statement, articles of incorporation, and evidence of federal 501(c)(3) tax exempt status, such as its annual Internal Revenue Service form 990. In addition to describing the charitable mission of the organization, these documents provide EOIR with evidence of the organization s governance structure, further distinguishing legitimate organizations from illegitimate. Letters of support from other service providers in the community have been a part of many successful recognition applications; reputable programs will easily obtain these, while disreputable ones will not. Additionally, EOIR may also consider developing a template affidavit to be signed by an applying organization s Executive Director or Board Chair. The signer would attest that the organization is a non-profit with a charitable mission that principally serves low income individuals. Additionally, CLINIC encourages EOIR to develop an online tool, tied to the roster of recognized organizations and accredited representatives. All organizations and representatives would be required to update their information on an annual basis, ensuring both that defunct organizations may be easily identified and removed and that EOIR has the most accurate information about each group. Ideally, EOIR s database would be able to be matched to that of the Internal Revenue Service, allowing for an electronic check of charitable tax-exemption. The ability for organizations and individuals to update their own information annually would make re-recognition unnecessary. Such a requirement would be a burden on applicants as well as on EOIR, ICE and USCIS. Similarly, reformatting the recognition process into a two-tiered system would be burdensome on organizations as well as the government and would add no value to services provided to immigrants in need. Further, 8CFR 1292.2(a), "Qualifications of organizations," should be expanded to read: nonprofit religious, charitable, social service, government or similar organization established in the United States... EOIR should consider recognition for other alternative service providers,
including government agencies. They would serve as force multipliers for community-based organizations. Fraud Prevention By requiring that organizations establish eligibility for recognition by providing documentation issued by other government agencies, EOIR can prevent abuse of the system by unscrupulous actors. As mentioned above, this type of documentation establishes an organization s legitimacy and credibility, without placing undue burden on a community-based organization. In this way, the reputable organizations will distinguish themselves from the disreputable. Additionally, organizations' adherence to EOIR's training requirements, including ethics and professionalism training, discussed below, will demonstrate the organization's ability and commitment to abide by the agency's regulations. The regulations should be made plain to every recognized agency in the letters they receive from EOIR granting them recognition. The letters should clearly state what constitutes authorized practice under the Immigration and Nationality Act; they must also clearly describe the types of action or inaction that would lead to withdrawal of recognition. EOIR should take steps to encourage other service providers in the community to report unscrupulous programs. Immigration and Customs Enforcement (ICE) trial attorneys, local prosecutors, the private bar, court clerks, and judges are all also aware of legitimate and illegitimate programs in their areas and should be encouraged to report those who take advantage of their clients. The agency should devote additional resources to outreach efforts encouraging communities to self-police and report dishonest programs. A public education campaign that explains clearly the purpose and requirements of recognized programs would promote community policing efforts. Reporting requirements must be clear and seek all information needed to fully investigate a claim up-front, in one report. Streamlining the process of giving an account of a potentially unscrupulous organization will make community members more likely to report abuse of the system and lead to improved fraud-detection efforts. EOIR should make it easy for immigrants to find qualified representation and to report when they are victimized. It should establish a hotline for reporting and advertise this on posters in its courtrooms. All courts should have the most up-to-date lists of low cost and pro bono legal service providers in their area. The agency should also provide printed materials explaining clients rights when working with a legal representative as well as the types of services a recognized organization can offer. These documents should be made widely available and distributed along with the federal government s materials about the unauthorized practice of immigration law.
CLINIC does not support a requirement that recognized organizations undergo a re-recognition process. Such a requirement would only lead to delays in application processing that would be harmful to the uninterrupted zealous advocacy of the organizations pending cases. Rather, EOIR must implement a robust process of revoking organization s recognition when necessary and develop a strong online system as described above, through which recognized organizations would check in with EOIR and update their information on an annual basis. Fees CLINIC agrees that organizations seeking recognition must establish that they are not-for-profit. However, charging fees is not antithetical to that status. By providing these services in a sustainable manner available to lower income community members, organizations are performing the vital charitable mission of ensuring access to justice for all. Any change to the regulations should focus on requiring organizations to demonstrate their provision of quality service to those most in need, rather than revenue sources and fee scales. This type of inquiry better reflects the spirit of the regulations filling a need for services in the community that has not lessened since the regulations were first promulgated. In fact, the need for low cost legal services has only increased due to factors such as the country's poor economy and increased immigration enforcement. EOIR's growing roster of recognized organizations and accredited representatives is evidence of this need. Over the last ten years the roster has grown in diverse ways, to include literacy programs, organizations that assist survivors of domestic violence and sexual assault, farm workers, and others. Every 501(c)(3) has organizational documents outlining its mission and the population it intends to serve. EOIR should focus its inquiry into who an organization serves (for example, individuals who are indigent or have a low income, are illiterate, semi-literate, or have limited English proficiency, and those with no to little formal education), types of service provided (to families, refugees, asylees, victims of trafficking and other crimes, witnesses assisting the government, unaccompanied children, survivors of humanitarian crises, and torture victims, for example), and the provision of quality service. The assessment of appropriate fees is an independent analysis that must be left to each individual organization, in accordance with those documents. The regulations regarding recognition should respect the individuality of each program while leaving the determination of an organization s eligibility for charitable tax-exemption to the Internal Revenue Service. Charitable organizations are not in the business of making a profit. If an organization raises funds in a given year beyond what it has anticipated in its budget, the organization puts those funds back into the organization to expand its services. A charitable organization should have the flexibility to develop a fee structure that allows it to maintain its tax exempt status, while at the same time making its services accessible to low income and other vulnerable populations. Often charitable programs' fee structures include support for sliding scale and pro bono
representation in addition to wrap-around components provided by other parts of the agency, including social services, counseling services, etc. To limit recognized organizations by setting a cap on their fees would cause significant harm to the sustainability of these service providers and leave those in need with few trustworthy resources. A system in which an organization s eligibility for recognition is determined based on the percentage of its revenue from client fees would not be an effective measure of ensuring that the organization is serving a non-profit religious, charitable, or social service purpose. There are several examples of charitable programs within CLINIC s network in which revenues exceed expenses. One example is a program that is supported by volunteers, or by a religious institution, such as a community of nuns who may not take a salary for themselves. This program would not incur high salary costs and would likely have income higher than its actual program operating expenses. Again, this does not mean that the program operates to seek a profit. Rather, its earnings are returned to the organization to fulfill its nonprofit mission. In the rare event that a program brings in more fees than expected in a given year, offsetting its income to expense ratio, excess funds would be reinvested in the program to meet other unmet needs within the community. Flat income does not leave room to build capacity to serve more vulnerable individuals in the future. While many community-based organizations are supported by grants, institutional funders do not provide financial assistance for the provision of legal services. Furthermore, federal funding for direct legal immigration representation is severely limited in scope and dollars. Service-related fees are essential for giving organizations the flexibility they need to sustain their legal service programs. Just as limiting an organization s fee revenue does not guarantee that it has a charitable mission, such a limit also does not guarantee that the organization provides high quality service. EOIR s focus in reevaluating the regulations should be to ensure that immigrants in need find qualified assistance when they need it. There is no correlation between fees and competence. Withdrawal of Recognition The process of withdrawal of recognition can be improved through improved communication. As recommended above, EOIR should inform all recognized organizations of reasons their recognition may be withdrawn, and the process through which that would occur, in writing, with their letters of recognition. Organizations should also receive information about how and when to affirmatively withdraw from the roster of recognized organizations and the consequences of punitive withdrawal. Recognized organizations should be reminded regularly of their responsibilities to keep EOIR informed of staff changes and changes of address, and EOIR should devise an online system for recognized organizations to update this information annually. Modernizations such as this would enable EOIR to maintain an accurate list of organizations that are actively providing charitable legal services with minimal staff time and effort. EOIR should reach out to organizations that do
not update their information in a timely manner through a telephone call, an email and a letter. Dormant organizations should be removed from the roster and recognition withdrawn if EOIR does not receive a timely response to its outreach efforts. Improved communication is key to a fair and transparent withdrawal process as well as improved services and an accurate roster of recognized organizations to serve the public. Further, as they currently stand, the regulations at 8 CFR 1292.2(c) do not provide for any appeal of the Board s disposition of proceedings against an organization. EOIR should consider affording due process and amend the regulations to provide for a mechanism of appeal. Definition of Low Income Again, CLINIC urges EOIR to consider re-framing the focus of the regulations to focus on providing quality service to those in need, rather than placing income limitations on who may be served. Organizations must demonstrate that they are meeting their charitable missions to serve vulnerable populations, including, but not limited to, those who are indigent or have low income, are illiterate, semi-literate, or have limited English proficiency, or little to no formal education. They must provide evidence that they serve groups such as families, individuals in removal proceedings, refugees, asylees, victims of trafficking or other crime, unaccompanied children, and survivors of humanitarian crises, and torture. The language in the Federal Register refers to Legal Services Corporations (LSCs), which are federally funded, and limit their services to those whose income is 125% of the Federal Poverty Guidelines or less. There are two problems with treating recognized organizations like LSCs. First, the government should not determine who receives charitable services that it does not fund. Second, the Federal Poverty Guidelines are uniform across the continental United States they are not flexible enough to accurately define local economic realities. Incomes and expenses are very different in Brooklyn, NY and Laramie, WY. Recognized organizations' charitable activities are controlled by their tax exempt status. Need should not be defined by regulation. Finally, strictly regulating the income of recognized organizations clients will lead to unnecessary administrative burdens on both the government and the organizations. EOIR may not have the capacity to audit recognized organizations for adherence to low income guidelines. Agencies do not have the capacity to report on all of their clients incomes and should not be required to spend precious resources on reporting. Required Training Accreditation CLINIC welcomes EOIR s efforts to ensure that accredited representatives maintain sufficient knowledge of immigration law and procedure.
EOIR should require that accredited representatives fulfill an immigration training requirement in the same way that most state bars require attorneys to complete Continuing Legal Education (CLE) classes. Maintaining accurate knowledge of immigration law and procedure is essential for competent and ethical practice. Requiring continued training ensures that representatives are up-to-date on quickly-changing immigration law and policy. However, individuals seeking to obtain or maintain the BIA s accreditation should not be required to take classes that have been approved for state CLEs. Such a requirement is not practical, as non-lawyers are not always permitted to attend state CLEs. Additionally, it can be quite expensive to obtain CLE certification for a course, an expense which often drives up the price for participants. CLINIC recommends that 30-45 hours of training per three year accreditation cycle would be appropriate. The training received should demonstrate a representative s acquisition of broad knowledge in areas related to his or her organization s caseload. In addition, EOIR should consider requiring that at least nine of the 30-45 hours of required training be in the areas of ethics and professionalism. EOIR should place as few restrictions on when, where, and in what format training is received within the three year period. EOIR should not foresee a standard curriculum imposed by the government. Rather, the government should encourage the use of remote learning, including webinars and e-learning to supplement in-person training. In-house training within recognized agencies, conducted by qualified attorneys or full and partial accredited representatives, should be encouraged as a cost-effective way of sharing expertise. EOIR can monitor the quality of trainings in much the same way as states certifying CLEs do. Every three years applicants for re-accreditation should include the agendas from trainings attended as well as biographies of the trainers. This information would be simple for trainers to provide and applicants to share; it would also be easy for EOIR to review for quality control purposes as part of the every-three-years accreditation process. CLINIC does not recommend that a writing sample be a part of an individual s accreditation process. A writing sample is not indicative of the quality of service that an accredited representative, particularly a partially-accredited representative who does not appear in court or draft legal memoranda, can provide. Finally, EOIR should share its Professional Conduct for Practitioners Rules and Procedures widely both in its initial letters to representatives informing them of their accreditation, and in regular communications. The agency should also consider conducting an annual webinar on the rules of professional conduct. Fraud Prevention
CLINIC applauds the efforts EOIR and other government agencies have already made on the issues of fraud prevention and ending the unauthorized practice of immigration law. As discussed above, CLINIC encourages EOIR to make the requirements for initiating an investigation into a potentially unscrupulous service provider very clear to the community. Knowing the requirements up-front and not engaging them in a long process of investigation will make individuals more likely to report abusers of the system. The reporting process should be simple and streamlined, to facilitate the reporting party's engagement with EOIR. Additionally, requiring training and reporting will lend credibility to the representatives listed on the roster and will differentiate legitimate, knowledgeable service providers from fraudulent ones. The requirements and responsibilities of accredited representatives should be made plain to every such individual in their letters from EOIR informing them of their accreditation. The letters should clearly state what constitutes authorized practice under the Immigration and Nationality Act; they must also clearly describe the types of action or inaction that would lead to withdrawal of accreditation. EOIR should take steps to encourage other service providers in the community to report unscrupulous individuals. Immigration and Customs Enforcement (ICE) trial attorneys, local prosecutors, the private bar, court clerks, and judges are all also aware of legitimate and illegitimate actors in their areas and should be encouraged to report those who are dishonest. The agency should devote additional resources to outreach efforts encouraging communities to selfpolice and report such representatives. CLINIC encourages EOIR to consider developing credentials for accredited representatives to carry to show to clients and court personnel. An identification card, similar to a state bar identification card issued to an attorney, would distinguish legitimate service providers from those who are not. EOIR could consider working with USCIS in the production of cards, as that agency already has the capacity to develop such items. Adequate Supervision CLINIC is pleased to see EOIR considering the best way to ensure that accredited representatives provide effective assistance and representation. We believe, however, that supervision through regulation is not the appropriate way to ensure that. Supervision requires a level of activity and intervention that cannot be sufficiently maintained by outside, contractual, or pro bono attorneys. That level of oversight would entail direct review of every case file as well as analysis of a representative s legal skill, competence, application of the law, case management, ethics and ultimate responsibility for the end result. It is particularly true that such a level of supervision by an attorney cannot be maintained in rural areas where representation by accredited representatives becomes that much more essential to providing legal services to those in need.
In fact, the idea of regulating supervision runs counter to the purpose of the recognition and accreditation program, which was designed specifically to expand the field of service providers without attorneys. Simply to require that an attorney supervise every accredited representative does not adequately ensure that representatives receive the best mentoring or highest quality of assistance. An attorney who is a recent graduate, who has never handled an immigration matter, or who has only worked in employment immigration would not be qualified to supervise an accredited representative handling a difficult removal case. Rather, EOIR should focus on ensuring that representatives have adequate training, capacity, and access to technical assistance that is, spot checking of individual issues at the request of the representative. Technical assistance can be provided by support organizations like CLINIC or AILA, other experienced accredited representatives, or attorneys. Representatives who receive regular training as described above, supplemented with technical assistance from a qualified practitioner will be well qualified for day-to-day representation. The Board of Immigration Appeals 2008 decision in Matter of EAC, Inc. describes requirements for accreditation: An application for accreditation must fully set forth the nature and extent of the proposed representative s experience and knowledge of immigration and nationality law and procedure and the category of accreditation sought, either full or partial. The request for accreditation should include the proposed representative s resume, letters of recommendation, and evidence of all immigration training that he or she has completed. Detailed descriptions of the topics addressed in recent immigration training should also be provided to show that the individual has the knowledge and experience in immigration law and procedure required for the services that he or she will provide through the organization. The Board explains that applicants for accreditation must demonstrate a broad knowledge of immigration law and procedure, but makes no mention of supervision. CLINIC strongly supports the increased access to due process, justice, and competent application assistance and processing that accreditation affords. So many individuals, for reasons such as lack of income or geographic or cultural barriers, would not receive quality assistance without recognized organizations and accredited representatives. Conclusion EOIR s interest in improving the process of recognition and accreditation is to be commended, as is its willingness to involve stakeholders in the process of re-evaluating the regulations. There are many important issues to consider in drafting the proposed amendments to the regulations. Revisions must focus on the intent behind the initial regulations and the best ways to expand services to those in need, while maintaining the integrity of this unique process of permitting qualified practitioners to represent individuals before USCIS and EOIR. CLINIC is pleased to
be part of the process and looks forward to sharing additional comments after draft regulations are issued. Thank you for consideration of our comments. Sincerely, Maria M. Odom Executive Director