Jean King, General Counsel

(DATE)

Jean King, General Counsel

Office of the General Counsel

Executive Office for Immigration Review

Department of Justice

5107 Leesburg Pike, Suite 2600

Falls Church, VA 22041

VIA:

RE:Comments on Proposed Rule for Recognition of Organizations and Accreditation of Non-Attorney Representatives [RIN 1125-AA72; EOIR Docket No. 176]

The (AGENCY NAME) respectfully submits comments regarding the proposed rule for recognition of organizations and accreditation of non-attorney representatives. We appreciate the efforts of the Executive Office for Immigration Review (EOIR) in improving how recognition and accreditation is regulated and implemented. We are supportive of EOIR’s overarching goals for the proposed changes, namely, to “promote the effective and efficient administration of justice before DHS and EOIR by increasing the availability of competent non-lawyer representation for underserved immigrant populations” and “protect the public from fraud and abuse by unscrupulous organizations and individuals.”

(AGENCY NAME) is a Board of Immigration Appeals (BIA) recognized agency with a total of (#) immigration staff and (#) BIA accredited representatives, partial and/or full.

(AGENCY NAME) provides charitable immigration legal services to low-income and indigent immigrants, including (PROVIDE A SHORT LIST OF SERVICES PROVIDED THAT REFLECT HUMANITARIAN CASES IN ADDITION TO OTHER SERVICES).

Our agency has provided legal representation to low-income immigrants since (INSERT DATE). Our agency is an affiliate of Catholic Legal Immigration Network, Inc. (RETAIN THIS LAST SENTENCE IF TRUE).We draw our comments heavily from CLINIC’s and frequently repeat them, especially when we are in full agreement and wish only to refer EOIR to CLINIC’s amplified justifications.

Our long-term commitment to providing these services in spite of many local and national challenges makes us deeply interested in EOIR’s proposed rule changes to BIA recognition and accreditation. We trust our comments are helpful to EOIR in discerning how the proposed changes, if made final, would impact our local efforts, either strengthening or hindering EOIR’s overarching goals for the recognition and accreditation program.

Accredited Representative Required (Federal Register, Thursday, October 1, 2015, (pg. 59516)

EOIR seeksinput on “the proposed requirement that, in order to be recognized, each organization must have an accredited representative, including whether an organization with a licensed attorney and no accredited representatives on staff should be able to become a recognized organization.”

We understand that recognition is intended to support non-attorneys in their immigration legal practice and not for nonprofits solely with attorneys. We generally support the requirement for a recognized organization to have an accredited representative. We note that this may negatively impact organizations that do not have an accredited representative currently on staff and will need to acquire one to retain recognition.While many recognized programs employ both attorney and accredited representative staff, others do not. EOIR should provide sufficient time for such programs to replace an accredited representative in order to avoid losing their recognition.

Requiring Federal Tax Exempt Status for Recognition (pg. 59516)

EOIR seeksinput on “the proposed requirement that an organization must demonstrate federal tax exempt status, including whether there are any non-profit organizations that are currently recognized that would be precluded from recognition by this requirement; and whether recognition should be restricted to non-profit organizations that have obtained section 501(c)(3) tax-exempt status.”

We generally support the proposed requirement that organizations seeking recognition must be a non-profit and demonstrate federal tax exempt status as it is broadly presented. Our organization holds such nonprofit status with the IRS.

Elimination of Nominal Charges Requirement (pg. 59517)

EOIR proposes to eliminate the “nominal fee” requirement and replace it with a new recognition requirement, called in short “substantial amount” as discussed below.

(INSERT AGENCY NAME) is opposed to the nominal fee requirementfor agency recognition. The nominal fee requirement is well-known among charitable organizations to be the greatest hindrance to building capacity to serve more low-income and indigent immigrants. The requirement limits our revenue potential and in turn the number of clients who otherwise could be served with fees on a sliding scale or with a fee waiver. Consequently, we are often left to seek pro bono representation from the private bar for such “hardship” and “humanitarian” cases in these circumstances. Seeking and securing pro bono representation, and sometimes training the attorney in advance, is a time-intensive activity that paradoxically draws resources away from representing other clients.

Therefore, (INSERT AGENCY NAME) greatly appreciates EOIR’s efforts to eliminate the nominal fee requirement. With this change we are confident that our recognized organization will be able to serve more low-income and indigent clients.

Requirement that a Substantial Amount of the Budget is Not Derived from Client Charges (pg. 59517)

EOIR proposes to replace the current “nominal fee” requirement with a new recognitionrequirement in which an organization must establish that, “A substantial amount of the organization’s immigration legal services budget is derived from sources other than funds provided by or on behalf of the immigration clients themselves (such as legal fees, donations, or membership dues)” (§ 1292.11(a)(3)).

We understand EOIR’s intent to shift its focus away from nominal fees and to an organization’s funding sources and budget so that recognized organizations may have greater flexibility in assessing fees while still requiring that organizations serve the neediest. While we appreciate EOIR’s intent, we do not support the proposed change called “substantial amount.”

Our position is the same as CLINIC’s. We believe CLINIC’s extensive network of charitablerecognized agencies and accredited staff has the best perspective on this matter. The substantial amount requirement is just as problematic as nominal fees, and may be even more difficult for EOIR to adjudicate and nonprofits to understand and follow. “Substantial amount” continues to focus on matters of money and the vagaries of budgets, revenues, expenditures and balance sheets. As CLINIC states in great detail in its comments, the issue of money is the wrong lens by which EOIR should judge qualification for recognition. The complexities of “substantial amount” and the burdens it will place on recognized agencies will not further EOIR’s goals for the proposed changes.

EOIR should instead acknowledge that our organization’s work is chiefly guided by our nonprofit status and mission statement. These are governed by our Articles of Incorporation with oversight by our board of directors, executive director, and program directors. Our collective efforts are annually reported in the IRS 990 statements and other regular reporting to local donors. We urge EOIR to eliminate its nominal fee requirement and abandon its substantial amount proposal in lieu of the alternatives CLINIC offers in its comments.

Requirement to Provide Immigration Legal Services Primarily to Low-Income and Indigent Clients (pg. 59518)

Our organization generally supports the proposed requirement that “an organization must demonstrate that its immigration legal services are directed primarily to low-income and indigent clients within the United States and that, if an organization charges fees, the organization has a written policy for accommodating clients unable to pay for immigration legal services.”

We believe each organization should have flexibility to determine which clients are low-income, indigent, and eligible for such services. Further, we fully agree that each organization should ensure that it accommodates individuals who are unable to pay for immigration legal services based on the resources of time, money, and staff expertise.

However, we have strong concerns about the proposed requirement that organizations establish guidelines for determining whether clients are “low-income and indigent.” Rather than create additional documentation requirements and adjudicatory oversight, we urgeEOIR to focus not on the income level of each person or household served, but instead on the organization’s nonprofit status, mission, and all of its other charitable reporting duties to the federal government and local donors.

Authorized Officer (pg. 59519)

The proposed rule would require an organization to designate an authorized officer who is empowered to act on its behalf for all matters related to recognition and accreditation. The president, secretary, executive director or other designated individual of the organization may serve as the authorized officer of the organization.

We understand EOIR’s need for an authorized officer who is responsible for submitting recognition and accreditation applications and reporting changes to EOIR, such as a change of address or an accredited representative’s departure. We appreciate that EOIR has provided the organization with flexibility on the person it would designate.

That said, we wish for EOIR to be aware that staff turnover is not uncommon among nonprofits. As such, we do not wish to see recognized agencies unduly penalized if staff turnover is the cause for an authorized officer to be momentarily lacking or unaware of her duties until notified otherwise.

Character and Fitness Requirement for Accreditation (pg. 59519)

EOIR proposes to replace the good moral character requirement with a “character and fitness” requirement for accreditation. EOIR seeks input on how current immigration status should be a factor in the fitness determination, specifically, “to what extent should the agency consider whether the individual has employment authorization, has been issued a notice of intent to revoke or terminate an immigration status (or other relief), such as asylum or withholding of removal or deportation, or is in pending deportation, exclusion, or removal proceedings?”

Our organization does not support the proposed character and fitness requirement for reasons sufficiently stated in CLINIC’s comments. We see key differences between attorneys licensed by a state bar and accredited representatives who are limited to providing immigration legal services under the auspices of a recognized agency.

Given our years as a recognized agency with accredited representatives in our employment, we believe the current good moral character requirement that has been in place for decades is the most appropriate and should be retained.

We appreciate EOIR seeking input on whether a person meets the character and fitness requirement if he/she lacks employment authorization, has a notice of intent to revoke or terminate an immigration status, or is in pending deportation, exclusion or removal proceedings.

We do not see an inherent conflict of interest in “having accredited representatives represent individuals before the same immigration agencies before whom they are actively appearing in their personal capacities.” We have employed accredited representatives who are immigrants and have never witnessed a conflict of interest in their representing others in immigration matters as a result of their own personal immigration experience.

To the contrary, we are appreciative of the fact that personal experiences with immigration matters actually enhance an accredited representative’s insight, compassion and commitment. Similarly, we see value in utilizing staff and volunteers who have been granted Deferred Action for Childhood Arrivals (DACA) status; a status that seems to fit squarely into the example posed in EOIR’s question. Undoubtedly, DACA employees and volunteers who are accreditedhave enhanced recognized agencies’ ability to credibly and effectively serve that population.

Extending Recognition and Accreditation to Any Office Where An Organization Offers Immigration Legal Services (pg. 59521)

EOIR seeks input on “the proposed provision permitting an organization to extend its recognition and the accreditation of its representatives to any office or location where it offers immigration legal services.” We support this provision. The ability to extend recognition to additional office locations without a separate, lengthy application process is extremely helpful and will be appreciated when made final.

That said, we believe EOIR and USCIS can work together better to improve how USCIS gives input on recognition and accreditation applications, making the input more in line with regulations and relevant to the decision at hand.

Renewal of Recognition and Accreditation (pg. 59522)

Requiring recognition to be renewed is perhaps understood only from a federal government perspective. However, it does not reflect a priority for our recognized agency nor does not further our goal to provide legal representation to low-income immigrants. Given all of the current documentation and reporting requirements to maintain nonprofit status and serve clients before USCIS and Immigration Courts, we are not able to endorse more requirements such as renewal of recognition. We prefer to use our limited time on serving clients who need our legal representation.

However, if renewing recognition is vital to achieving the stated goals of the proposed changes, we respectfully ask EOIR to consider extending the validity period for agency recognition from three years to nine years or more. Conditions change less frequently for recognized organizations than accredited representatives, and as noted earlier, there is already significant oversight of a nonprofit’s existence and activities through the process of obtaining and maintaining federal tax exempt status. Furthermore, we ask that documentation requirements for renewal be less than for the initial application.

We also have concerns about EOIR’s ability to manage the renewal of recognition for existing and future nonprofits along with accreditation applications without creating a backlog of pending decisions. In no way should a backlog created by EOIR delay or hinder our ability to practice with authorization. In all these matters we encourage EOIR to take CLINIC’s comments into consideration.

Conditional Recognition (pg. 59524)

The proposed rule provides for conditional recognition of organizations that have not been previously recognized or that are recognized anew after having lost recognition. We supportconditional recognition for organizations that have lost recognition due to an administrative termination or disciplinary sanctions. This is an appropriate measure to monitor such organizations to ensure that they have addressed issues of concern.

Weoppose conditional recognition for organizations that have not been previously recognized, unless the organization does not yet have its federal tax exempt status.Conditional recognition would not be appropriate for nonprofits with legal services provided by attorneys or long-standing nonprofits that have extensive experience in serving low-income immigrants with non-legal services.

Reporting, Recordkeeping, and Posting Requirements (pg. 59524)

Nonprofits with federal tax exempt status have extensive reporting requirements for similar purposes which EOIR seeks. We recommend a presumption that organizations that have proven that they are in compliance with their federal tax exempt statusshould not undergo additional scrutiny without cause.

Duty to Report Changes (pg. 59524)

Under the proposed rule at §1292.12(a), a recognized organization has a duty to promptly notify the OLAP Director in writing of changes in the organization’s contact information and changes to any material information the organization provided on EOIR-31, Form EOIR-31A, or the supporting documents.

We generally support the proposed duty to report changes. However, we wish to keep the number and type of updates to a minimum. Updates should be limited to changes that affect theRoster of Recognized Organizations and Accredited Representatives. In addition, EOIR should make it possible to submit such changes with ease electronically, in keeping with trends in information sharing and technology.

Record Keeping Requirements (pg. 59524)

Under the proposed rule at §1292.12(a), a recognized organization must compile the following records in a timely manner and retain them for a period of six years from the date the record is created, as long as the organization remains recognized: fee schedule; and annual report.

We are not opposed to the requirement that an organization develop and maintain a fee schedule. We are opposed to having to provide the fee schedule as a pro forma requirement for renewal. EOIR states the need to evaluate the effectiveness of immigration legal programs and presumably seeks to do so, in part, by reviewing fee schedules.

As noted above, we raise objections to our charitable work being evaluated by monetary measures and wish to be recognized by more meaningful criteria. We do not believe it is easy, or appropriate, for EOIR to evaluate a program by currently unknown benchmarks using a fee schedule. There are too many case-by-case circumstances for EOIR to effectively evaluate fee schedules and the revenue these create. These circumstances are based on programs’ structure; geographical location; case selection policy; scope of representation; service delivery models;external funding requirements; and many other variables.

Moreover, the type of annual report EOIR seeks is unclear. A traditional annual report provided by nonprofits to their board of directors and the general public does not seem well-suited for EOIR’s stated purpose. If EOIR seeks a different kind of annual report, this would be a new document nonprofits would have to create for EOIRand thus an added burden.

Administrative Termination of Recognition and Accreditation (pg. 59525)

The rule proposes to replace the current withdrawal-of-recognition process with an administrative termination process. The stated objective for this change is to “provide a clear and more effective mechanism for OLAP to regulate the R&A roster for administrative, non-disciplinary reason.”

We recommend changing the following language at §1292.17(a) from “Prior to issuing a determination to administratively terminate recognition or accreditation, the OLAP Director may request information from the organization, representative, USCIS or EOIR” to “shall request information from the organization, representative, USCIS or EOIR.”

Bases for Administrative Termination of Recognition (pg. 59525)

At §1292.17(b), the proposed rule provides several bases for termination of recognition, including by the request of the organization, failure to timely file a renewal request, termination of all of the organization’s accredited representatives, failure to comply with the reporting, recordkeeping and posting requirements, and failure to maintain eligibility under §1292.14.

Per §1292.17(b)(1) of the proposed rule, OLAP may administratively terminate for failure to timely file a request to renew recognition, failure to renew accreditation of a representative, or failure to obtain initial accreditation for a proposed representative.